EXECUTION COPY

ASSET PURCHASE AGREEMENT

by and among

POLAROID HOLDING COMPANY, POL/\ROID CORPORATION,DnT ADnTn0n,T"TBAT:D T:TT:0'TDn,Tl0" TT0 nn! AnnTn0AnrTAT TTí'1 VL1""1\.VILJ ",Vl"li.UJYl,Ll'- ,LLL'-./ll'\Vl"llvù, LL'-', 1 \JL£""\l'\\,l.1 vF'.1 .L.lr"\.1, LL'-,',

POLAROID LATIN AMERICA I CORPORATION, POLAROID ASIA PACIFIC, LLC,POLAROID INTERNATIONAL I-IOLDING, LLC, POLAROID NEW BEDFORD REAL

ESTATE, LLC, POLAROID NORWOOD REAL ESTATE, LLC and POLAROID WALTHAMREAL ESTATE, LLC

and

PHC ACQUISITIONS, LLC

Dated as of January 24,2009

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TABLE OF CONTENTS

Page

ARTICLE 1 PURCHASE AND SALE OF THE ACQUIRED ASSETS .......................................2SECTION 1.1 Transfer of Acquired Assets. . .......... ....... ......... ..... ....... ...... ........................ ..2SECTION 1.2 Excluded Assets. ..........................................................................................5SECTION 1.3 Assumption of Liabilities. ....... .......... ......... .......... .... ..... ... ...... ............ .... ......8SECTION 1.4SECTION 1.5

Excluded Liabilities. ................ ......... ...... ......... ... ......... ..... .... ..... ......... .... .....8Identification of Additional and Excluded Contracts: Cure Costs.............1 0

ARTICLE j PURCHASE PRICE .................................................................................................12SECTION 2.1 Purchase Price. ...........................................................................................12SECTION 2.2 Deposit. ........ ............. ..... ...................... ........ ....... ............... ..................... ...13SECTION 2.3 Proration. ....................................................................................................13

ARTICLE 3 CLOSING AND DELIVERIES................................................................................14SECTION 3.1 Closing. ..................................................................................................... .14SECTION 3.2 Sellers' Deliveries. .....................................................................................14SECTION 3.3 Buyer's Deliveries. ....................................................................................15

ARTICLE 4 REPRESENTATIONS AND WARRANTIES ................ ......... ................ ............. ...16SECTION 4.1 Representations and WalTanties of Sellers. ...............................................16SECTION 4.2 Representations and Warranties of Buyer.................. ..... ...... ............ ........27SECTION 4.3 WalTanties Are Exclusive. .........................................................................28

ARTICLE 5 COVENANTS AND OTHER AGREEMENTS.......................................................29SECTION 5.1SECTION 5.2SECTION 5.3SECTION 5.4SECTION 5.5SECTION 5.6SECTION 5.7SECTION 5.8SECTION 5.9SECTION 5.10SECTION 5.11SECTION 5.12SECTION 5.13

Pre-Closing Covenants of Sellers. ........ ....................... ...... ............ ............29Pre-Closing Covenants of Buyer. ..............................................................35Other Covenants of Sellers and Buyer. ......................................................35Employment Covenants and Other Undertaking. ......................................38Ownership of Polaroid Name and Acquired Intellectual Property. ...........38Non-Assignment of Acquired Contracts. ..................................................39Bankruptcy Actions. ..................................................................................39Covenant Not to Compete. .... .......... ......................... ........... ..... ....... ...... .....41Certain Litigation. ..... ............. ................... ... ....... .... ... ....... .... ......... ...... ......42Competing Transactions. ... ............ ........... ............................. ....... ...... ..... ..42Right of First RefusaL. ....... .... .......... ....................... ............. ......... ........... ...43Use of Nal11es. ............................................................................................44Certain Affiliate AlTangements...... ...... .......... .... ...... ........ ........ ... ............ ...45

ARTICLE 6 TAXES......................................................................................................................45SECTION 6.1 Taxes Related to Purchase of Acquired Assets...... .......... ....................... ...45SECTION 6.2 Cooperation on Tax Matters. ........................ .......................... ...................45SECTION 6.3 Allocation of Purchase Price.......... ..... ...... ......... .................... .................. ..46

ARTICLE 7 CONDITIONS PRECEDENT TO PERFORMANCE BY PARTIES .....................47

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SECTION 7.1SECTION 7.2

Conditions Precedent to Performance by Sellers. ......................................47Conditions Precedent to the Performance by Buyer. ...... ........... ............ ....48

ARTICLE 8 TERMINATION .......................................................................................................50SECTION 8.1 Conditions of Tell1ination. ........................................................................50SECTION 8.2 Effect ofTeIl1ination.................................................................................52SECTION 8.3 Break-Up Fee. ............................................................................................52

ARTICLE 9 SURVIVAL ..............................................................................................................53SECTION 9.1 SurvivaL. .....................................................................................................53SECTION 9.2 Specific Performance. ................................................................................54SECTION 9.3 Covenant Not to Sue. .................................................................................54

ARTICLE 10 MISCELLANEOUS ...............................................................................................54SECTION 10.1SECTION 10.2SECTION LCUSECTION 10.4SECTION 10.5SECTION 10.6SECTION 10.7SECTION 10.8SECTION 10.9SECTION 10.10SECTION 10.11SECTION 10.12SECTION 10.13SECTION 10.14SECTION 10.15SECTION 10.16

Joint Drafting. ............................................................................................54E.l!lih~LAjS\lr9nççs. . ............ ... ... .... .... .. .... ........ ., .. .... ....... ...... ....... ..... .. .. ... ...54Successors and Assigns..............................................................................55Govelling Law: Jurisdiction: Waiver of Trial by Jury..............................55Expenses. ...... ............ ........ ..... ............. .... .......... .... ...................... ....... ........55Severability. ...............................................................................................55Notices. ......................................................................................................56Amendments: Waivers. ..............................................................................57Public Announcements. .............................................................................57Entire Agreel11ent. ... .......... ... ............... ...................... ..... ...... ....... .......... ... ..58No Third Party Beneficiaries. ....................................................................58I-Ieadings. ...................................................................................................58Counterparts. ..... ...... .......... .............. ........ .......... ........ ..... ... ... ....... .......... ... ..58Construction. ..............................................................................................58Tax Disclosure. ..........................................................................................58Sellers' Representative...... ... ............... .... ...... .... ............. .................. ..........59

ARTICLE 11 DEFINITIONS ........................................................................................................59

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SCHEDULES

Schedule 1.1 (a)Schedule 1.1 (b)Schedule 1.1 (c)Schedule 1.1 (e)Schedule 1.1 (f)Schedule 1.1 (g)Schedule 1.1 (0)Schedule 1.1 (q)Schcdule 1.1 (u)Schedule 1.1 (v)Schedule 1.1 (w)Schedule I.2(c)Schedule I.2(e),,(,hprl1l1 r' 1 7fh \Uv.l.LvU.L-iv .1 .':\J.J./C' r.1, ."V~" i A i ') (; \ùv!lvUUlv 1 '''\. J

Schedule I.2(r)Schedule 1.2(s)Schedule 1.3(d)Schedule I.5(a)Schedule 4.1 (d)Schedule 4. 1 (f)Schedule 4.1 (g)Schedule 4.1 (h)Schedule 4.1 (i)(ii)Schedule 4.1 (i)(iii)Schedule 4. 1 U)Schedule 4.1 (k)(i)Schedule 4.1 (k)(ii)Schedule 4.1 (k)(iii)Schedule 4.1 (k)(v)Schedule 4.1 (1)Schedule 4.1 (m)Schedule 4.1(0)Schedule 4.1(p)Schedule 4. l(s)Schedule 4.1 (t)Schedule 4.1 (u)Schedule 4.1(v)Schedule 4.1 (x)Schedule 5 .1 (b)Schedule 5.1(e)Schedule 5.3(d)(ii)Schedule 5.3(e)Schedule 5.1 1

Leased Real PropertyOwned Machinery and EquipmentAcquired ContractsInventory and Inventory LocationsSupply LocationsAcquired Intellectual PropertyLetters of CreditInsurance PoliciesLockbox Payment RightsArt Collection AssetsInfoiination Technology Owned, Leased or LicensedExcluded ContractsMiscellaneous Excluded AssetsProhibited PaiiiesC",-,,"lllrlorl 0nnc'ü0 r...f J\ 0t~r"\"L/\\.ll'lUvU "-UUù..ù V.1 i.L.\.d..1Vl.

Excluded Leases

Excluded InventoryMiscellaneous Assumed LiabilitiesCure Costs

Seller ReportsSubsidiariesSellers Consents and ApprovalsLitigationConsents and Approvals to transfer Acquired JV InterestsJV Organization DocumentsSuffciency of AssetsValid use and ownership ofIntellectual PropertyNon-compliance and Unauthorized Use of Acquired IPLicenses Granted by SellersSoftwareInformation TechnologyPeiinit ViolationsInsuranceCeiiain Matters Regarding Real Estate LeasesAbsence of Certain DevelopmentsMaterial ContractsCustomers and SuppliersAccounts ReceivableAffiliate AssetsConduct of Business Pre-ClosingSubject Intellet Domain NamesCertain Transition Services

Cash Collateral AmountsEMEA Entities

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Schedule 7.2(i)Schedule 7.2(1)Schedule 1 I (a)Schedule 11 (b)

ConsentsCertain Acquired ContractsKnowledgeLease Deposit Amounts

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Exhibit A

Exhibit B

Exhibit C

Exhibit D

Exhibit E

Exhibit F

Exhibit G

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EXHIBITS

Form of Instrument of Assignment of Acquired JV Interests

Form of Instruments of Assignment of Intellectual Propeiiy

Foiin of Assumption and Assignment Agreement

Form of Instrument of Assignment of Leases

Form of Bil of Sale

Form of Bankruptcy Bidding Procedures Order

Form of Bankruptcy Sale Order

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ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT (this "Agreement"), dated as ofJanuary 24,2009 (the "Execution Date"), is made by and among POLAROID HOLDINGCOMPANY, a Delaware corporation ("PHC"), POLAROID CORPORATION, a Delawarecorporation ("PC"), POLAROID CONSUMER ELECTRONICS, LLC, a Delaware limitedliability company ("PCE"), POLAROID CAPITAL, LLC, a Delaware limited liability companyCPCAI"), POLAROID LATn~ AMERICA I CORPORATlûN, a Delaware corporation("PLA"), POLAROID ASIA PACIFIC, LLC, a Delaware limited liability company ("PAP"),POLAROID INTERNATIONAL I-IOLDING, LLC, a Delaware limited liability company

("PINT"), POLAROID NEW BEDFORD REAL ESTATE, LLC, a Delaware limited liabilitycompany ("PNB"), POLAROID NORWOOD REAL ESTATE, LLC, a Delaware limitedliability company ("PNOR"), POLAROID WALTHAM REAL ESTATE, LLC, a Delawarelimited liability company ("PW ALT"; and, together with PHC, PC, PCE, PCAP, PLA, PAP,PINT, PNB and PNOR, the "Sellers" and each, individually, a "Seller"), and PHCACQUISITIONS, LLC, a Delaware limited liability company ("Buyer"). Capitalized tennslH....prl in thic 1\ rrrpPl"Ypnt 0r("~ fip+~n~"rl ni~ ("l"'n('c_rpfpi~pnf'Pr1 in ¡\ i-tirlp '1 1"'.u..i'- ,i..i i,iii.. J. ""6.1 """',iJ.J..l"-.lJ.i. LLJ, "- ..l-.........i...... ""1. .... ..w.. .. "-''.... ......""..... ...ii .L .i.. L.i...... .. .i .

RECITALS

WHEREAS, PC is a direct wholly-owned subsidiary of PHC, and each of peE,PCAP, PLA, PAP, PINT, PNB, PNOR and PWALT is a direct wholly-owned subsidiary of PCand, in tum, an indirect wholly-owned subsidiary of PHC;

WHEREAS, PHC and each of the other Sellers is a debtor-in-possession underTitle 11 of the United States Code, 11 U.S. C. § 101 et seq (the "Bankruptcv Code") and each hastìed a voluntary petition for relief (the "Petition for Relief~" and the date on which such Petitionfor Relief is filed being referred to as the "Petition Date") under Chapter 1 I of the BankruptcyCode on December 18, 2008 in the United States Bankruptcy Court for the District of Minnesota(the "Bankruptcy Court," the bankruptcy case initiated by Sellers as described in this Recitalshall collectively be referred to as the "Bankruptcy Case");

WHEREAS, Sellers, together with the Acquired Subsidiaries and the AcquiredJ oint Venture (in each case as hereinafter defined), design, develop, license, sell and marketintellectual propeiiy, instant and digital imaging products, televisions, DVD players, digitalprinting products, eyewear and related products (the "Business");

WHEREAS, Buyer desires to purchase the Acquired Assets and assume theAssumed Liabilities from Sellers, and Sellers desire to sell, convey, assign and transfer to Buyerthe Acquired Assets together with the Assumed Liabilities, all in the manner and subject to theterms and conditions set foiih in this Agreement and in accordance with Sections 105, 363, 365and 1146 and other applicable provisions of the Bankruptcy Code; and

WHEREAS, the Acquired Assets and Assumed Liabilities shall be purchased andassumed by Buyer pursuant to the Bankruptcy Sale Order approving such sale, t1-ee and clear ofall Liens (other than Permitted Liens), Claims and Encumbrances, pursuant to Sections 105, 363,

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365 and 1146 of the Bankruptcy Code, and Rules 6004 and 6006 of the Federal Rules ofBankruptcy Procedure, which order will include the authorization for the assumption by Sellersand assignment to Buyer of the Acquired Contracts and the liabilities thereunder in accordancewith Section 365 of the Bankruptcy Code, all in the manner and subject to the terms andconditions set forth in this Agreement and the Bankruptcy Sale Order and in accordance withother applicable provisions of the Bankruptcy Code and the Federal Rules of BankruptcyProcedure and the Local Rules for the United States Bankruptcy Couii for the District ofMinnesota (together, the "Bankruptcy Ruìes").

STATEMENT OF AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and their respectiverepresentations, warranties, covenants and agreements herein contained, and other good andvaluable consideration, the receipt and suftciency of which are hereby acknowledged, Sellersand Buyer hereby agree as follows:

ARTICLE 1

PURCHASE AND SALE OF THE ACQUIRED ASSETS

SECTION i. i Transfer of Acquired Assets.

At the Closing, and upon the teiiTIS and subject to the conditions herein set forth,Sellers shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall acquire fromSellers, all right, title and interest of Sellers in, to and under the Acquired Assets, free and clearof all Liens (other than Permitted Liens), Claims and Encumbrances. As used herein, the term"Acquired Assets" shall mean, to the extent related to the Business, all of the propeiiies, assetsand rights, tangible and intangible, of Sellers of whatever kind and nature, excluding theExcluded Assets, including, without limitation:

(a) all leases (the "Assumed Leases") relating to leased real property

of Sellers relating to the Business, other than the Excluded Leases or such leased real propertythat shall become an Excluded Asset pursuant to the last paragraph of this Section 1.1 (the"Leased Real Propeiiy"), together with all appurtenant, subsurface and mineral rights, licenses,rights-of-way, privileges and easements belonging to, appeliaining to or benefiting the LeasedReal Property in any way and all Improvements erected thereon, including, without limitation,the Leased Real Property listed on Schedule 1.1 (a) and any Lease Deposit Amounts madepursuant to any Assumed Lease;

(b) all (i) owned equipment, machinery, fumiture, IÌxtures and

improvements, tooling and spare parts of Sellers relating to the Business (the "Owned Machinervand Equipment"), including, without limitation, the Owned Machinery and Equipment listed onSchedule l.l(b ), and (ii) rights of Sellers to the warranties and licenses received tì"ommanufacturers and sellers of the Owned Machinery and Equipment;

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(c) all Contracts relating to the Business, including those listed on

Schedule 1.1 (c ), other than such Contracts that are Excluded Contracts or such Contracts thatbecome Excluded Contracts pursuant to Section I .5(b) (collectively, the "Acquired Contracts"),and all deposits made under any Acquired Contract;

(d) to the extent related to the Business, except as set forth on

Schedule l.j(e), all accounts receivable and notes receivable of Sellers with Persons that are notAftiiates of Selîers (the "Accounts Receivable"):

(e) all (i) Inventory of Sellers relating to the Business, including,without limitation, all (A) Inventory at the locations listed on Schedule 1. I (e), (B) Inventory heldby third parties on a consignment basis, (C) Inventory held by third-party processors, and (D)Inventory located on any Leased Real Property, in each case other than Excluded Inventory, and(ii) rights of Sellers to the warranties received from suppliers with respect to such Inventory;

(f) all Supplies of Sellers relating to the Business, including, without

Jimitatioa the Simnlies located on anvLeased Real Proneiiy or at the locations listed on, 1. J. ~ .i '"Schedule 1.1 (0;

(g) all Intellectual Property owned by Sellers or licensed to Sellers

pursuant to an Acquired Contract (collectively, the "Acquired Intellectual Property"), including,without limitation, all rights to the name and mark "Polaroid" (and all rights to any other tradenames, trademarks and service marks owned by Sellers or licensed to Sellers, including withoutlimitation, the Transfened Internet Domain Names to be transferred to Sellers in accordance withSection 5.1(e) and Subject Internet Domain Names to be transfened to Sellers in accordancewith Section 5.1(e) and Section 5.3(f), and the Intellectual Propeiiy listed on Schedule l.1(g);

(h) to the fullest extent pern1itted under applicable law, all permits,

authorizations and licenses (collectively, the "Pennits") issued to Sellers by any GovernmentAuthority and all pending applications therefor, including, without limitation, those Pern1its setfOiih on Schedule 4.1 (m);

(i) copies of all books, fies, documents and records owned by or in

the control of Sellers and relating to the Business (in whatever format they exist, whether in hardcopy or electronic format), including, without limitation, customer lists, historical customer tìles,accounting records, test results, product specifications, plans, data, studies, drawings, diagrams,training manuals, engineering data, safety and environmental reports and documents,maintenance schedules and operating and production records, inventory records, business plans,credit records of customers, and marketing materials (including, but not limited to all logos andartwork used in such marketing materials);

U) to the extent related to an Acquired Asset, all prepaid expenses,deposits and advances made by or on behalf of Sellers and all credits due to Sellers;

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(k) all goodwill, payment intangibles and general intangible assets and

rights of Sellers;

(I) any chattel paper owned or held by Sellers;

(m) to the extent permitted by applicable law, all books, tìles andrecords owned by Sellers that relate to employees of Sellers who are hired by Buyer on theClosing Date, including, \\/ithûut liiTiÍtation, books, files and records tlìat arc related to 111cdicalhistory, medical insurance or other medical matters and to workers' compensation and to theevaluation, appraisal or performance of such employees;

(n) all equity interests held by Sellers (the "Acquired JV Interests") in

Eyewear Brand Limited, a Bermuda company (the "Acquired Joint Venture");

(0) to the extent assignable and related to the Business, all of Sellers'

interest in any letters of credit issued by any Person at the request or for the benefit of Sellers(the "AcilÜ:..e~.Ll"..çttçxs of Credit"), including, without limitation, the letters of credit described onSchedule 1. i (0) and the Cash Collateral Amount suppoiiing such Acquired Letters of Credit,other than any Excluded Letters of Credit;

(p) all the telephone, telex and telephone facsimile numbers and other

directory listings used in connection with the Business;

(q) all rights to proceeds under insurance policies set forth on

Schedule 1.1 (q) (except to the extent such proceeds relate to any Excluded Asset);

(r) all Sellers' Causes of Action, other than the Causes of Action that

are identified or described as Excluded Assets;

(s) all adveiiising, marketing and promotional materials, studies,

reports and all other printed or written materials relating to the Business;

(t) all rights of Sellers under non-disclosure or confìdentiality, non-

disparagement, non-compete, or non-solicitation agreements with former employees of Sellers,agents of Sellers or with third paiiies; provided, however, that Buyer shall not be deemed toassume any such agreements except as explicitly provided in Section 1.3;

(u) all rights to receive amounts payable to Sellers with respect to the

conduct of the Business under lockbox arrangements included in any of the Acquired Contracts,including as specifìed in Schedule 1.1 (u) (the "Acquired Lockbox Payment Rights");

(v) all artwork, archival documents, images and scientific notes owned

by Sellers that are listed on Schedule 1.1 (v) (the "Art Collection Assets");

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(w) all computer hardware used by any Transfened Employee (and, to

the extent assignable, software loaded on such computer hardware), including the computerhardware listed on Schedule 1.1 (w) (the "Transferred Computer Hardware and Software");

(x) all (i) outstanding shares of capital stock or equity or other

ownership interest held, directly or indirectly, by Sellers in the Acquired Subsidiaries (eachindividually an "Acquired Equity Interest" and, together, the "Acquired Equitv Interests") and(ii) corporate seaís, minute books, chmier documents, stock transfer records, record books,original Tax and financial records and such other tìles, books and records relating to theAcquired Subsidiaries; provided that, prior to the Closing Date, Buyer may in its sole discretiondeem either or both of the Acquired Equity Interests to be an Excluded Asset pursuant to the lastparagraph of this Section 1.1; and

(y) all other or additional assets, properties, privileges, rights

(including prepaid expenses) and interests of Sellers related to the Business of every kind anddescription and wherever located, whether known or unknown, fixed or unfixed, accrued,absolute, contingent or otherwise, and whether or not specifically referred to in this Agreement:

provided, however, none of the pmiies hereto intends that Buyer, or any of its Affiliates, shall bedeemed to be a successor to Sellers with respect to Acquired Assets, other than as a successorowner of the equity or other ownership interests in the (i) Acquired Joint Venture and (ii)Acquired Subsidiaries, in each case, to the extent included in the Acquired Assets hereunder.

At any time prior to five (5) Business Days prior to the Closing Date, Buyer may,in its discretion by written notice to Sellers, designate any of the Acquired Assets as additionalExcluded Assets, which notice shall set forth in reasonable detail the Acquired Assets sodesignated. Buyer acknowledges and agrees that there shall be no reduction in the AggregateCash Consideration if it elects to designate any Acquired Assets as Excluded Assets.Notwithstanding any other provision hereof, the Liabilities of Sellers under or related to anyAcquired Asset that becomes an Excluded Asset under this paragraph will constitute ExcludedLiabilities.

SECTION 1.2 Excluded Assets.

Notwithstanding anything to the contrary in this Agreement, Sellers shall retainall right, title and interest to, in and under only the properties, rights, interests and assets ofSellers set forth below (all such properties, rights, interests and assets not being acquired byBuyer being herein referred to as the "Excluded Assets"):

(a) any asset of a Seller that otherwise would constitute an Acquired

Asset but for the fact that it is sold or otherwise disposed of, in the Ordinary Course of Businessof the relevant Seller and consistent with Section 5.1 (b) of this Agreement, during the time ÍÌomthe Execution Date until the Closing Date;

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(b) all of Sellers' Cash and all of Sellers' right, title and interest in and

to all deposit or similar accounts in which Sellers deposit Cash, other than any Cash CollateralAmounts or Lease Deposit Amounts;

(c) all Contracts listed on Schedule 1.2(c) and all Contracts that are

removed hom Schedule 1.1 (c) pursuant to Section L.5(b) (collectively, the "ExcludedContracts");

(d) all Employee Benefit Plans currently or previously sponsored or

maintained by Sellers or any of Sellers' ERISA Aftìliates (together with Sellers, the "SellerControlled Group") or their respective predecessors or with respect to which the SellerControlled Group or their respective predecessors has made or is required to make payments,transfers or contributions in respect of any present or former employees, directors, offcers,shareholders, consultants or independent contractors of Sellers or any of Sellers' ERISAAffliates or their respective predecessors (collectively, the "Seller Benefìt Plans"), and allinsurance nolicies. fìduciarv liabilitv nolicies. benefit administration contracts. actuarial,l J' .; ,. J, J 'contracts, trusts, escrows, surety bonds, letters of credit and other contracts primarily relating toany Seller Benefit Plan;

(e) all of the assets set fOlih on Schedule 1.2(e);

(f) all rights of Sellers to Claims for refunds that do not constitute an

Acquired Asset hereunder;

(g) all rights of Sellers in respect of the overpayment or rebates of

Taxes paid by Sellers;

(h) all A voidance Actions that Sellers or any of their Affliates may

have against any Person and all proceeds thereof, other than against any Person identified onSchedule 1.2(h) (provided that all Avoidance Actions contemplated by Section 1.j(i) and/orSection 1.2(j) shall be Excluded Assets for all purposes);

(i) all Causes of Action identitìed on Schedule 1.2(i) and all proceeds

thereof;

U) all Causes of Action against any holder of any Claim against anySellers or any of their respective Affiliates (other than the Acquired Joint Venture and, to theextent included in the Acquired Assets hereunder, the Acquired Subsidiaries) that could beasseiied as a defense, counterclaim, or a right of recoupment or setoff in response to any Causeof Action or Claim brought, commenced, tìled or asserted by any Person against any of theSellers or any of their respective Aftìliates;

(k) except as specified in Section 1.l(q), all of Sellers' rights under

any insurance policy or contract of insurance or indemnity (or similar agreement) under which aSeller is an insured (including, without limitation, all rights to proceeds thereunder), named as an

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additional insured or is otherwise a beneficiary, and all proceeds realized in connectiontherewith;

(1) all amounts due to Sellers from any Affiliate of Sellers (other than,

to the extent included in the Acquired Assets hereunder, any amounts due to Sellers from theAcquired Joint Venture or any Acquired Subsidiary, which shall be deemed extinguished at theClosing as provided in Section 5.13 hereof);

(m) all outstanding shares of capital stock or equity or other ownershipinterest held by a Seller in any other Seller;

(n) all outstanding shares of capital stock or equity or other ownership

interest held by Sellers in any direct or indirect subsidiary, other than any Acquired Subsidiary(but only to the extent that Buyer deems such Acquired Subsidiary to be an Acquired Asset);

(0) all Tax records and information ("Tax Records") and all corporate

books and records, board minutes, organizational documents of Sellers; provided, however, thatcopies of corporate books and records, board minutes and organizational documents shall beprovided in accordance with Section 1.1 (i);

(p) all Sellers' rights under this Agreement and all cash and non-cash

consideration payable or deliverable to Sellers pursuant to the terms and provisions hereof;

(q) all accounts receivable and notes receivable of Sellers owing by

any Affiliate of any Seller (other than, to the extent included in the Acquired Assets hereunder,any accounts receivable or notes receivable owing to Sellers from the Acquired Joint Venture orthe Acquired Subsidiaries, which shall be deemed extinguished at the Closing as provided inSection 5.13 hereof);

(1') all leases that are not Assumed Leases (the "Excluded Leases")

relating to Leased Real Property of Sellers, including those listed on Schedule 1.j(r), togetherwith all appurtenant, subsurface and mineral rights, licenses, rights-of-way, privileges andeasements belonging to, appeiiaining to or benefiting such Leased Real Property in any way andall Improvements erected thereon;

(s) all Inventory of Sellers listed on Schedule 1.2(s) (the "Excluded

Inventory"), including rights of Sellers to the warranties received from suppliers with respect tosuch Inventory;

(t) all of Sellers' interest in any letters of credit issued by any Person

at the request or for the benefit of Sellers which relate to an Excluded Lease (the "ExcludedLetters of Credit");

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(u) any and all information not relating to the Business that is storedon any Sellers' computer systems, data network or servers ("Non-Business RelatedInformation"); and

(v) all equity interests held by any Seller in any third party (other than,

to the extent included in the Acquired Assets hereunder, the Acquired Joint Venture and theAcquired Subsidiaries).

SECTION 1.3 Assumption of Liabilities.

Upon the terms and subject to the conditions set forth in this Agreement, at theClosing, Buyer shall assume, and thereafter pay, perf 0111 and discharge when due (in accordance

with their respective terms and subject to the respective conditions thereof), only the followingliabilities (the "Assumcd Liabilities") and no others:

(a) all liabilities and obligations arising at and after the Closing

(excluding any obligations arising after the Closing relating to liabilities incuned pre-Closing butnot discovered until after the Closing) with respect to the Acquired Assets;

(b) all Cure Costs;

( c) all Transfer Taxes; and

(d) all other liabilities set forth on Schedule 1.3(d).

SECTION 1.4 Excluded Liabilities.

Buyer is assuming only the Assumed Liabilities and is not assuming any otherliability or obligation of Sellers of whatever nature, whether presently in existence or arisinghereafter. All such other liabilities and obligations shall be retained by, and remain liabilitiesand obligations of, Sellers (all such liabilities are, collectively, the "Excluded Liabilities"). TheExcluded Liabilities include, but are not limited to, the following liabilities and obligations:

(a) all liabilities and obligations of Sellers relating to Excluded Assets;

(b) all liabilities and obligations of Sellers or the Seller Controlled

Group to all former employees of Sellers (and their respective spouses and dependents);

( c) all liabilities and obligations of Sellers for: (i) payments made to orfees and expenses accrued with respect to professionals retained or employed by Sellers' Chapter1 i estate or any official committee of creditors appointed in the Sellers' Bankruptcy Case, (ii)reclamation Claims and (iii) any prepetition, priority or other tax Claims;

(d) any liability of Sellers or their directors, offcers, stockholders oragents, arising out oC or relating to, this Agreement or the transactions contemplated by thisAgreement, whether incuned prior to, at or subsequent to the Closing Date, including, without

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limitation, all finder's or broker's fees and expenses and any and all fees and expenses of anyrepresentatives of Sellers;

(e) other than as specifically identitìed as an Assumed Liability, any

liability relating to (x) events or conditions occurring or existing in connection with, or arisingout ot~ the Business as operated prior to the Closing Date, or (y) the ownership, possession, use,operation or sale or other disposition prior to the Closing Date of any Acquired Assets (or anyother assets, properties, rights or interests associated, at any time prior to the Closing Date, withthe Business);

(f) any liability to any Person at any time employed by Sellers or their

predecessors-in-interest at any time or to any such Person's spouse, children, other dependents orbeneficiaries, with respect to incidents, events, exposures or circumstances occurring at any timeduring the period or periods of any such Person's employment by Sellers or their predecessors-in-interest, whenever such claims mature or are asserted, including, without limitation, allLiabilities arising (i) under the Seller Benetìt Plans, any other employment change in control,tern1inatio11, severance or sin1ilar agreeine11t, (ii) under any einployrnent, wage and hour la\v orrestriction, equal oppOliunity, discrimination, plant closing or immigration and naturalizationlaws, or any other applicable laws related to employment or termination thereof: (iii) under anycollective bargaining laws, agreements or arrangements or (iv) in connection with any workers'compensation or any other employee health, accident, disability or safety claims;

(g) any liability of Sellers under Title iv of ERISA;

(h) any liability of Sellers under COBRA;

(i) any incentive compensation, bonus, change in control, severance,

pension or retirement liability of Sellers to their current or former employees whether or notaccrued as of the Closing Date, whether or not under any Seller Benefit Plan;

(j) (i) any liability or obligation of any Seller, or any member of any

consolidated, at1liated, combined or unitary group of which any Seller is or has been a member,for Taxes, other than Transfer 'faxes which shall be an Assumed Liability, (ii) Taxes of anyPerson, pursuant to an agreement or otherwise, (iii) Taxes of Sellers attributable to the income,properties or operations of the Acquired Joint Venture for periods or portions thereof ending onor before the Closing Date;

(k) any liability inculTed by (i) Sellers or (ii) their respective directors,offcers, stockholders, agents or employees after the Closing Date (except, with respect to anyTransfelTed Employee, to the extent such liability arises with respect to services perf

o 111 ed on

behalf of Buyer or its At1liates following the Closing Date (other than pursuant to the TransitionServices Agreement));

(1) any liability of Sellers to any Person on account of any Proceeding,

including those Proceedings set forth on Schedule 4.1 (h);

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Docii 2824622\8

(m)of an Excluded Asset;

any liability relating to or arising out of the ownership or operation

(n) any liability or obligation arising out of the conduct of the

Business prior to the Closing Date, including, without limitation, (i) the liabilities relating to theemployment by Sellers of any employees, whether before or after the Closing Date and whetheror not such employees become Transferred Employees, except in each case for any suchliabilities or obligations that are Assumed Liabilities: and (ii) any liabiìity under the WARN Actor similar foreign, state or local law;

(0) any liability or obligation of Sellers under any Indebtedness,

including, without limitation, any Indebtedness owed to any stockholder or other Affliate of anySeller, and any Contract evidencing any such fìnancing arrangement;

(p) any liability or obligation, whether known or unknown, (i) under

Environmental I,aws attributable or relating to or incurred as a result of any acts, omissions, orconditions first occurring or in stence as of or prior to the Closing Date, including, but not

limited to, any liability or obligation with respect to the release, handling, discharge, treatment,storage, generation, disposal, or presence of Hazardous Substances at any location (it beingunderstood that Buyer shall be responsible for any liability or obligation arising out of or relatingto its actions following the Closing), (ii) with respect to claims relating to health and safety,including claims for injury, sickness, disease or death of any Person (to the extent relating to orinculTed as a result of any acts, omissions, or conditions first occulTing or in existence as of orprior to the Closing Date) or (iii) with respect to compliance with any legal requirement relatingto any of the foregoing, to the extent relating to periods prior to the Closing;

(q)contemplated herein; and

fees or expenses of Sellers inculTed with respect to the transactions

(1') any liability or obligation under any Acquired Contract or

Assumed Lease arising on or after the Petition Date but prior to the Closing, other than the Post-Petition Cure Costs (as hereinafter defined) or as set foiih on Schedule 1.3( d).

SECTION 1.5 Identifìcation of Additional and Excluded Contracts: Cure Costs.

(a) Prior to the date hereof Sellers have delivered Schedule I .5(a) to

Buyer, which schedule contains: (i) a list of Contracts, which Sellers have rejected pursuant toan order of the Bankruptcy Couii prior to the date hereof (the "Rejected Contracts"); (ii) a list ofContracts which Sellers have assumed pursuant to an order of the Bankruptcy Couii prior to thedate hereof; and (iii) with respect to each Contract that is listed as an Acquired Contract or anExcluded Contract and is listed, as of the date hereof, on Schedule 1.1 (c) or Schedule l.j( c),respectively, (A) Sellers' good faith estimate of (x) the Cure Costs in respect of such Contractthat arose prior to the Petition Date, and (y) the Cure Costs in respect of such Contract that aroseon or after the Petition Date, and (B) whether such Contract was entered into on or following thePetition Date. No later than 25 days prior to the Sale Hearing, Buyer shall provide Sellers with a

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list of Contracts to be assumed, if applicable, by Sellers and assigned by Sellers to Buyer (the"Assigned Contracts"). As promptly as practicable following the determination of the AssignedContracts by Buyer and in any event no later than 20 days prior to the Sale Hearing, Sellers shallcommence appropriate proceedings before the Bankruptcy Couii and otherwise take allnecessary actions in order to dete111ine Cure Costs with respect to any Assigned Contract enteredinto prior to the Petition Date. Notwithstanding the foregoing, prior to the Closing, Buyer mayidentify any Assigned Contract as one that Buyer no longer desires to have assigned to it andsuch Contract shall for all purposes of this Agreement be deemed to be an Excluded Asset. Atthe direction of Buyer, Sellers shall, or shall cause their Affiliates to, as the case may be, take allnecessary actions and, if necessary, promptly commence appropriate proceedings before theBankruptcy Court in order to effect the assumption of any Assigned Contract by Sellers, ifapplicable, and the assignment of such Contract to Buyer at the Closing pursuant to theBankruptcy Sale Motion

(b) (i) At any time at least five (5) days prior to the Closing Date,

or such later date as the Bankruptcy Court approves the assumption and assignment of theri/'\"'"t~r¡F"+0 i''t"'ri r1DtC\-i"Y~,.',Ç)C' +1,,1: ó)r-tlli;l r-"1n~A r'"etc: ff''\~ '-)1"'.1 CY'(:l("lf1r' r""rl1î'fTq"f (\l~ Af'n1l1rpr1 ("(nntr~)("f" if"L.VlltlU\.l0 (.L11\"l \,1\,\...1111111v.. lil\. LlVl-ULti '--I.ii.. '-'Vi,LJ i.V.L l.J..lJ Jt-.....LJ..1.. '-'-J...\..L~''L LIJ. J. "'''''1'''''' v.... --................, ....

any, payable in connection therewith, Buyer may, in its sole discretion, modify Schedule i.1 (C)to add a Contract to such Schedule or remove any Contract from such Schedule, for any reasonwhatsoever, including where the actual Cure Cost required to be paid or satistìed in order toassume a Contract is greater than disclosed on Schedule i .5(a). Any Contract added to ScheduleL. shall become an Acquired Contract, shall be deemed an Acquired Asset for all pUllJoses of

this Agreement, and all Cure Costs and Liabilities arising at and after the Closing Date undersuch Contract shall be an Assumed Liability for all purposes of this Agreement to the extent soprovided pursuant to the provisions of Section 1.3. Upon Buyer's request, Sellers shall provideadditional information as to the Liabilities under the Contracts and leases suf1ìcient for Buyer tomake an informed assessment whether to designate any such Contracts as an Acquired Contractor Assumed Lease and accept an assignment and assumption of such Contracts or leaseshereunder.

(ii) Any motion, application or other court document filed with,

and the proposed orders submitted to, the Bankruptcy Court seeking authorization to assume andassign or reject or terminate any Contracts shall be provided to Buyer in advance offìling (with areasonable opportunity to review and comment on same) and shall be in form and substancereasonably satisfactory to Buyer in all material respects.

(iii) Sellers shall use their commercially reasonable effoiis to

make available to Buyer as promptly as practicable after the date hereof (or, in the case ofContracts entered into after the date hereof, as promptly thereafter as practicable) true and completecopies of each of the Contracts and of each of the Contracts listed, or required to be listed, inSchedule 1.1(c), and true and complete summaries of the tell11S of any such oral Contracts; i!being understood that, in any event, such copies and summaries shall be made available inrespect of the Contracts listed on the list delivered pursuant to the first sentence of Section L.5(a)no later than 35 days prior to the Sale Hearing.

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( c) With respect to each Assigned Contract, Buyer shall provide

adequate assurance of the future performance of such Assigned Contract by Buyer.

(d) The Cure Costs in respect of all of the Assigned Contracts shall bepaid by Buyer on or before Closing or as soon as practicable after the Cure Cost for an AssignedContract has been determined by the Bankruptcy Court.

A nrr"'l0T 'C.. ')n.l\.. 1 1 \.~ LL L.

PURCHASE PRICE

SECTION 2.1 Purchase Price.

(a) The aggregate consideration and purchase price (the "Purchase

Price") for the sale, transfer, assignment and conveyance of the Acquired Assets will be (a) FOiiyTwo Million Dollars ($42,000,000.00) (the "Aggregate Cash Consideration"), and (b) theassumption by Buyer of the Assumed Liabilities.

(b) At the Closing, Buyer shall pay to Sellers by wire transfer of

immediately available funds to the account(s) designated by the Sellers in accordance withSection 2.1 (c), an amount in cash equal to (i) the Aggregate Cash Consideration, (ii) plus theAdditional Amounts, (iii) less the Deposit Amount (excluding any interest earned thereon), (iv)less the Additional Pre-Petition Cure Cost Amount, if any, and (v) less the Unsatisfied Post-Petition Cure Cost Amount, if any (collectively, the "Closing Date Payment").

( c) The Closing Date Payment shall be paid by Buyer to Sellers inaccordance with the Sellers' Representative's written instructions, which shall be delivered toBuyer no less than two (2) Business Days prior to the Closing Date.

( d)meanings set forth below:

For purposes of this Agreement, the following terms shall have the

(i) "Actual Pre-Petition Cure Cost Amount" means the

aggregate amount of Pre-Petition Cure Costs actually paid by Buyer with respect to anyContract that constitutes an Assigned Contract as of the Closing.

(ii) "Additional Pre-Petition Cure Cost Amount" means the

Actual Pre-Petition Cure Cost Amount, less the Estimated Pre-Petition Cure CostAmount.

(iii) "Estimated Pre-Petition Cure Cost Amount" means an

aggregate dollar amount detern1ined as follows: (x) the Pre-Petition Cure Cost, asspecified on Schedule 1.5(a) hereto, associated with any Contract identified as anAcquired Contract or an Excluded Contract as of the date hereof, as set forth onSchedules 1.1 (c) or 1.2(c) hereto, respectively, that constitutes an Assigned Contract as of

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the Closing, plus (y) fífteen (15%) of the aggregate dollar amount determined inaccordance with clause (x) of this definition.

(iv) "Pre-Petition Cure Costs" shall mean any Cure Cost that

arose prior to the Petition Date and that is payable in respect of any Contract thatconstitutes an Assigned Contract as of the Closing.

(v) "Unsatisfied Post-Petition Cure Cost Amount" means the

aggregate amount of Cure Costs (other than Pre-Petition Cure Costs) that are (i)associated with any Contract that constitutes an Assigned Contract as of the Closing and

(ii) due and payable at or prior to the Closing.

SECTION 2.2 Deposit.

Prior to the close of business on January 27,2009, Buyer shall pay an earnestmoney deposit (the "Deposit") in the amount of Four Million Two l-Iundred Thousand Dollars($4,200,000.00) (the "Deposit Amount") to Wells Fargo Bank, N.A. (the "Escrow Agent")pursuant to an escrow agreement to be entered into on January 27,2009 by and among Sellers,Buyer and the Escrow Agent (the "Escrow Agreement"). The Deposit (excluding any interestthereon which shall be returned to Buyer in accordance with the Escrow Agreement) shall beapplied against payment of the Closing Date Payment on the Closing Date, as set fOlih in Section

Ll above. If this Agreement shall be terminated by the applicable paiiy pursuant to Section8.1 (a), .Q, .l£.l, fi, il, (g, D: or il hereof~ then the Escrow Agent shall return the Deposit(together with any interest earned thereon) to Buyer. If

this Agreement shall be tell11inated bySellers pursuant to Section 8.1(e) hereof, then the Escrow Agent shall deliver the Deposit toSellers, in accordance with Sellers' Representative's written instructions, and the Escrow Agentshall deliver any interest earned on the Deposit to the Buyer.

SECTION 2.3 Proration.

All rent, utility payments, real property taxes, assessments, common areapayments, leasing costs and commissions or other customarily prorated real estate items, in eachcase, relating to an Acquired Asset ("Prorated Items"), and attributable to periods beginningbefore and ending after the Closing Date, shall be prorated between the applicable Seller andBuyer, based on the number of days of such period up to and including the Closing Date (whichshall be for the account of Sellers) and the number of days of such period after the Closing Date(which shall be for the account of the Buyer). If the Closing Date shall occur before the actualamount of Prorated Items for the month in which the Closing Date occurs are determined, theappOliionment of such Prorated Items shall be upon the basis of an estimate by Seller of suchProrated Items for such month based on the latest available bills, invoices, tax assessments andother reasonably detailed documentation, which shall be provided to, and reasonably satisfactoryto, Buyer.

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ARTICLE 3

CLOSING AND DELIVERIES

SECTION 3.1 Closing.

The consummation of the transactions contemplated hereby (the "Closing") shalltake place at the offices of Lindquist & Vennum PLLP, 4200 IDS Center, 80 South EighthStreet, Minneapolis, Minnesota 55402 at 10:00 a.m., Minneapolis time, no later than the fifthBusiness Day follmving the satisfaction or waiver by the appropriate party of all the conditionscontained in Aiiicle 7 or on such other date or at such other place and time as may be mutuallyagreed to by the parties (the "Closing Date"). All proceedings to be taken and all documents tobe executed and delivered by all parties at the Closing shall be deemed to have been taken andexecuted simultaneously and no proceedings shall be deemed to have been taken nor documentsexecuted or delivered until all have been taken, executed and delivered. Subject to thesatisf~1ction or waiver of the conditions set forth in Article VII, the paiiies shall use their

commercially reasonable efú)llS to consummate the transactions contemplated hereby withinfifteen (15) calendar days after the Bankruptcy Court enters the Bankruptcy Sale Orderapproving the sale to Buyer and such order has become a Final Order.

SEcrlON 3.2 Sellers' Deliveries.

At or prior to the Closing, Sellers shall deliver to the Buyer:

(a) the Bill of Sale and Assumption and Assignment Agreement and

each other Ancillary Agreement to which any Seller is a paiiy, duly executed by such Sellers;

(b) an instrument of assignment of the Acquired JV Interests,

substantially in the form of Exhibit A hereto (the "JV Assignment") providing for the assignmentby the applicable Seller, and the assumption by Buyer, of the Acquired JV Interests free andclear of all Liens (other than Permitted Liens), Claims and Encumbrances duly executed by theapplicable Seller;

( c) instruments of assignment of all of the Acquired Intellectual

Property (the "IP Assignments"), duly executed by Sellers, in f0111 for recordation with theappropriate Government Authority, substantially in the form of Exhibit B hereto, and any otherassignments or instruments with respect to the Acquired Intellectual Property for which anassignment or instrument is required to assign, transfer or convey such assets to Buyer;

(d) evidence of receipt of Consents identified on Schedule 7.2(f to the

extent such consents are not provided for or satistìed by the Bankruptcy Sale Order;

(e) a ceiiifìed copy of the Bankruptcy Sale Order;

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(f)7.2(a), .Q, Lg il and il;

the offcer's certificate required to be delivered pursuant to Section

(g) ceiiificates executed by each Seller, in the form prescribed under

Treasury Regulation Section 1.1445-2(b), that such Seller is not a foreign person within themeaning of Section 1445(r)(3) of the Code;

(h) instrurnents of assurnption and assigl1111cnt of tIie i\.ssun1cd l__cases

substantially in the form of Exhibit C attached hereto (the "Assumption and Assignment ofLeases"), duly executed by Sellers, in form for recordation with the appropriate public landrecords, if necessary;

(i) all (i) lease files Ü)l" the Assumed Leases (including copies of any

plans of the Leased Real Property), and (ii) keys for the Leased Real Propeiiy, the combinationof any safes located in the Leased Real Propeiiy, and the access codes for any electronic securitysystem located at the Leased Real Propeiiy, in each case, in respect of the Assumed Leases;

U) all instruments and documents necessary to release any and allLiens (other than Permitted Liens), Claims and Encumbrances;

(k) a stock ceiiifìcate or stock certificates (or other valid instrument or

investment ceiiifìcate evidencing ownership) representing the Acquired Equity Interests, dulyendorsed in blank or accompanied by stock transfer powers and otherwise sufficient to transferthe Acquired Equity Interests to Buyerfìee and clear of all Liens, Claims and Encumbrances (butonly to the extent that Buyer deems the Acquired Equity Interests to be an Acquired Asset);

(I) the Transition Services Agreement (as hereinafter defined), duly

executed by the applicable Sellers; and

(m) such other bils of sale, deeds, endorsements, assignments andother good and suffìcient instruments of conveyance and transfer, in f0111 reasonably satisfactoryto Buyer, as Buyer may reasonably request to vest in Buyer all the right, title and interest ofSellers in, to or under any or all the Acquired Assets.

SECTION 3.3 Buver's Deliveries.

At the Closing, Buyer shall deliver to Sellers (i) the Closing Date Payment, and(ii) all of the following:

(a) the Assumption and Assignment Agreement, the JV Assignment,

the Transition Services Agreement and each other Ancillary Agreement to which Buyer is aparty, duly executed by Buyer;

(b) the ceiiificates required to be delivered by Section 7.1(a) and.Q;

and

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( c) such other assignments and other good and sufficient instruments

of assumption and transfer, in f0I111 reasonably satisfactory to Sellers, as Sellers may reasonablyrequest to transfer and assign the Assumed Liabilities to Buyer.

ARTICLE 4

REPRESENTATIONS AND WARRANTIES

SECTION 4.1 Representations and Warranties of Sellers.

Each Seller, jointly and severally, hereby represents to Buyer as set forth in thisArticle 4. Notwithstanding the foregoing or anything contained in this Agreement to thecontrary, each of the parties hereto acknowledges and agrees that the representations andwananties relating to the Acquired Subsidiaries shall (i) have no force or effect for any purpose,and shall not be deemed to have been made for any purpose, until the later to occur of (A)February 28,2009, or (B) such other date as Sellers' Representative and Buyer may agree inwritiiw (thp "RplWPSelltMinll Fff(~~tive Date"), and (ii) be subiect to nualiJìcation between the..~-¥---o \---- --ç --~--~-,~-- _. ~-~ ~. . " , . .. /) '\. / .. -i.

date hereof and the Representation Effective Date through an update to the schedules by Sellers,provided that no material qualifìcations shall be permitted to be included in the disclosureschedules with respect to any of the representations and warranties made pursuant to Section4.l( d). For the avoidance of doubt, each of the parties hereto acknowledges and agrees thatbetween the date hereof and the Representation Effective Date, Sellers shall be pe111itted to (A)except with respect to Schedule 4.1 (d) (with respect to which no material qualifìcations shall bepermitted), schedule any and all qualifìcations to the representations and warranties relating tothe Acquired Subsidiaries, whether or not any schedule of exceptions is currently contemplatedby such representations and warranties, and any such qualifìcations shall be deemed to have beendisclosed for all purposes hereof solely with respect to the Acquired Subsidiaries and for noother purpose, (B) add additional qualifications to the representations and warranties solely withrespect to the Acquired Subsidiaries and for no other purpose, where a schedule of exceptions iscurrently contemplated in this Article 4, and such qualifìcations shall be deemed to have beendisclosed solely with respect to the Acquired Subsidiaries and for no other purpose. To theextent Buyer deems any Acquired Equity Interest to be an Excluded Asset, then therepresentations and walTanties relating to the applicable Acquired Subsidiary shall have no forceor effect for any purpose, whether measured at the Closing or any other date.

(a) Organization. Each Seller is duly organized, validly existing andin good standing under the laws of the State of Dclaware. Each Acquired Subsidiary is dulyorganized, validly existing and in good standing under the laws of its jurisdiction of organization.Each Seller and each Acquired Subsidiary has all requisite corporate or limited liability company(or other) power and authority to own its properties and assets and to conduct its businesses asno\v conducted.

(b) Qualification to Conduct Business. Each Seller and each Acquired

Subsidiary is duly qualifìecl to do business and is in good standing in every jurisdiction in whichthe character of the properties owned or leased by it or the nature of the businesses conducted by

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it makes such qualification necessary except where the failure to be so qualified would not resultin a Material Adverse EfTect.

( c) Authorization and Validity. Each Seller has all requisite corporate

or limited liability company power and authority to enter into this Agreement and any AncillaryAgreements to which each such Seller is or will become a party and, subject to the (i)Bankruptcy Court's entry of the Orders, and (ii) receipt of all Consents to perform each suchSeHer's obligations hereunder and thereunder, the execution and cieìivery of this Agreement andeach Ancillary Agreement to which each such Seller is or will become a paiiy and theperformance of each such Seller's obligations hereunder and thereunder, have been, or on theClosing Date will be, duly authorized by all necessary corporate or limited liability companyaction of each such Seller, and no other corporate or limited liability company proceedings on

the part of any Seller are necessary to authorize such execution, delivery and performance. ThisAgreement and each Ancillary Agreement to which each Seller is or will become a party havebeen, or on the Closing Date will be, duly executed by each such Seller, and, subject to theBanlcriiptcy Couii's entry oftl1c Orders, constitute, or '.vill v.Jhen executed and deliveredconstitute, each sucl-i Seller's 'valid and binding obligatio11, enforceable against eac11 such Sellerin accordance with their respective terms. The boards of directors or boards of managers (asapplicable) of each Seller, or the federal-appointed receiver appointed to act on behalf of anySeller's board of directors or board managers, where necessary, has resolved to request that theBankruptcy Couii approve this Agreement and the transactions contemplated hereby and eachAncillary Agreement to which each Seller is or will become a party.

(d) Reports: Financial Statements. Schedule 4.I(d) contains (i) the

consolidating unaudited balance sheets of Sellers and the Acquired Subsidiaries as of December31, 2006 and December 31, 2007 and the related consolidating unaudited statements of ea11ingsfor the fìscal years then ended (the "Year-End Reports") and (ii) the consolidating unauditedbalance sheet and statement of ea11ings of Sellers and the Acquired Subsidiaries for the fiscalyear to date periods ended September 30, 2008 and December 18, 2008 (collectively, the"Interim Reports" and, together with the Y ear- End Financial Statements, the "Seller Reports").Each of the Seller Repoiis included presents fairly, in all material respects, the financial positionand results of operations of the Sellers and the Acquired Subsidiaries as of the respective dates orfor the respective periods set foiih therein (it being understood that (A) such Seller Reports donot include any inter-company eliminations and (B) such Seller Reports include transactions withPGW and its affiliates (and, as such, the results of operations ref1ected in the Seller Reports maynot be indicative of the results of operations that would be reflected if Sellers had not beenaffìliated with PGW and its affiliates).

(e) No ConfEct or Violation. Subject to the (i) receipt of all Consentsand (ii) the Bankruptcy Court's entry ofthe Orders, the execution, delivery and performance byeach Seller of this Agreement and each Ancillary Agreement to which any of them is or willbecome a paiiy does not and will not (A) violate or conflict with any provision of the

organizational documents (i.e., certificate of incorporation, certifìcate of formation, by-laws oroperating al:'reement) of any Seller, any Acquired Subsidiary or the Acquired Joint Venture, (B)

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violate any provision of law, or any order, judgment or decree of any Government Authorityapplicable to any Seller, any Acquired Subsidiary or the Acquired Joint Venture, (C) result in orrequire the creation or imposition of any Liens (other than Permitted Liens), Claims andEncumbrances on any of the Acquired Assets or any of the assets or properties of any AcquiredSubsidiary or the Acquired Joint Venture or (D) violate or result in a breach of or constitute(with due notice or lapse of

time or both) a default under any Acquired Contract entered into byany Seller (or any Contract entered into by any Acquired Subsidiary) or by which any of theSellers or any Acquired Subsidiary is bound or to which the assets of Sellers or any AcquiredSubsidiary are subject.

(f) Subsidiaries.

(i) Except as set foiih on Schedule 4.1 (f, there are no direct or

indirect subsidiaries of Sellers other than the other Sellers and the Acquired Subsidiary that ownor license any of the Acquired Intellectual Property, other than Acquired Intellectual Propertythat will be transferred to one of the Sellers prior to the Closing Date. One of the Sellers owns,directly or indirectly, all of the issued and outstanding capital stock and other equity interests ofthe Acquired Subsidiaries. There are no other shares of capital stock or other equity interests ofthe Acquired Subsidiaries issued other than as set forth on Schedule 4.1 (f). The Acquired EquityInterests have been duly authorized, validly issued, and are fully paid and nonassessable (in thosejurisdictions in which such concepts are applicable), (ii) have not been issued in violation of anypreemptive rights or of the teiins of any agreement or other understanding binding upon theAcquired Subsidiaries, and (iii) have been offered and sold in compliance with any and allapplicable securities laws, rules and regulations.

(ii) There are no existing option, warrant, call, right or other

Contracts, except as set forth on Schedule 4. i (f), to acquire any additional shares of capital stockor other equity securities of the Acquired Subsidiaries or other securities convertible into,exchangeable for or evidencing the right to subscribe for or purchase shares of capital stock orother equity securities of the Acquired Subsidiaries. There are no securities of the AcquiredSubsidiaries outstanding which upon conversion or exchange would require the issuance, sale ortransfer of any additional shares of capital stock or other equity securities of the AcquiredSubsidiaries or other securities convertible into, exchangeable for or evidencing the right tosubscribe for or purchase shares of capital stock or other equity securities of the AcquiredSubsidiaries. There are no obligations, contingent or otherwise, of the Acquired Subsidiary to (i)repurchase, redeem or otherwise acquire any Acquired Equity Interests or other equity interestsof the Acquired Subsidiaries, or (ii) provide funds to, or make any investment in (in the forn1 of aloan, capital contribution or otherwise), or provide any guarantee with respect to the obligationsof, any Person. There are no outstanding stock appreciation, phantom stock, profit paiiicipationor similar rights with respect to the Acquired Subsidiaries. There are no bonds, debentures, notesor other indebtedness of the Acquired Subsidiaries having the right to vote or consent (or,conveiiible into, or exchangeable for, securities having the right to vote or consent) on any

. matters on which stockholders (or other equityholders) of the Acquired Subsidiaries may vote.There are no voting trusts, irrevocable proxies or other Contracts or understandings to which any

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Docii 28246228

Acquired Subsidiary is a party or is bound with respect to the voting or consent of any shares ofthe Acquired Equity Interests.

(g) Consents and Approvals. Schedule 4.1 (g) sets forth a true andcomplete list of each material consent, waiver, authorization or approval of any Person and eachmaterial declaration to or filing or registration with any Government Authority that is required tobe obtained by Sellers or the Acquired Subsidiaries in connection with the execution anddelivery by the Seìlers of this Agreement and their respective Anciìary Agreements or theperformance by them of their obligations hereunder or thereunder, including, without limitation,any and all material consents and approvals that are required to be obtained, or rights of firstrefusal, first offer or other similar preferential rights to purchase that are required to be compliedwith, in connection with the assignment or transfer of any Acquired Assets to Buyer inaccordance with the terms of this Agreement (collectively, the "Consents").

(h) Litigation. Except as set foiih on Schedule 4.1 (h), there are no

Claims, actions, suits, proceedings, orders or investigations involving any Seller or the AcquiredSubsidiaries pending or, to the Knowledge of Sellers, threatened, before any GovemmentAuthority that could reasonably be expected to have a Material Adverse Effect.

(i) Title to Acquired Assets.

(i) On the Closing Date, Sellers will have, and, upon delivery

to Buyer on the Closing Date of the instruments of transfer contemplated by Section 3.2, andsubject to the teiins of the Bankruptcy Sale Order, Sellers will thereby transfer to Buyer, goodand valid title to, or, in the case of property leased or licensed by Sellers, a valid and subsistingleasehold interest in or a legal, valid and enforceable licensed interest in or right to use, all of the

Acquired Assets, free and clear of all Liens (other than Permitted Liens), Claims andEncumbrances, except for the Assumed Liabilities.

(ii) Subject to receipt of the consents and approvals set forth on

Schedule 4.1 (i)(ii), upon delivery to Buyer at the Closing of certificates (or other validinstruments or investment certifìcates, as the case may be) representing the Acquired JV Interestsand the Acquired Equity Interests, duly endorsed for transfer to Buyer or accompanied by dulyexecuted stock powers in blank, and receipt by Sellers of the poiiion of the Purchase Pricepayable in respect thereof~ legal and valid title to the Acquired Equity Interests and the AcquiredJV Interests, will pass to Buyer, free and clear of all Liens (other than Permitted Liens), Claimsand Encumbrances.

(iii) Attached hereto as Schedule 4.1 (i)(iii) is a true, COlTect andcomplete list of all organization documents of each Acquired Joint Venture ("JV OrganizationalDocuments"). On or prior to the date hereof~ Sellers have delivered to Purchaser a true, correctand complete copy of all JV Organization Documents. The JV Organization Documents are infull force and eflect, the applicable Seller is not in default thereunder and, (A) to the Knmvledgeof Seller, no event has occulTed which with the passage of time or the giving of notice wouldgive rise to a default thereunder and (B) there are no other agreements of any kind or nature that

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govell the existence and organization of the Acquired Joint Venture and the rights of therespective partners or members therein to which a Seller is a party.

(j) Suffciency of Assets. Except as set forth on Schedule 4.1 (j) and

other than the Excluded Assets, the Acquired Assets (and the assets o\vned or leased by theAcquired Subsidiary) constitute all of the material assets and properties that are used or held foruse in connection with the conduct of the Business, and are sufficient to carryon the Business asprcsently conductcd.

(k) Intellectual Propeiiy.

(i) Except as set foiih on Schedule 4.1 (k)(i)(a), Sellers and the

Acquired Subsidiaries own all right, title and interest in and to, or have valid and enforceablelicenses to use, all the Intellectual Property owned, used, issued to or held by them in connectionwith the conduct and operation of their respective businesses as now conducted, including allIntellectual Propeiiy set forth in Schedule 1.1 (g), which includes all registered AcquiredIntellectual Property (including, without limitation, all websites and domain names) owned byany of the Sellers or any Acquired Subsidiary (it being understood that, as of the date hereof theTransfened Internet Domain Names are not owned by any of the Sellers or any of the AcquiredSubsidiaries). Except as set forth on Schedule 4.l(k)(i)(b), no renewal and maintenance fees,annuities or other similar fees due and payable in respect of the Acquired Intellectual Propeiiyowned by any of the Sellers or any Acquired Subsidiary and required to have been listed onSchedule 1. I (g) are overdue. Except as set forth on Schedule 4. I (k)(i)(c), to the Knowledge ofSellers, no present or former employee, officer, director or other Affiliate of any of the Sellers orthe Acquired Subsidiary, or agent or outside contractor of any of the Sellers or the AcquiredSubsidiary, holds any right, title or interest, directly or indirectly, in whole or in part, in or to anyAcquired Intellectual Propeiiy.

(ii) Except as set forth on Schedule 4.1 (k)(ii)(a), Sellers and theAcquired Subsidiaries are in compliance in all material respects with all contractual obligationsrelating to the Acquired Intellectual Property. To the Knowledge of Sellers, except as set forthon Schedule 4.l(k)(ii)(b ), there is no unauthorized use, disclosure, infringement ormisappropriation of any Acquired Intellectual Propeiiy owned by any of the Sellers or the

Acquired Subsidiaries by any third party, including by any employee or former employee of anyof Sellers or the Acquired Subsidiaries. To the Knowledge of Sellers, except as set forth onSchedule 4.1 (k)(ii)(c), neither the Acquired Intellectual Property owned by any of the Sellers or

any Acquired Subsidiary nor the use, development, manufàcture, marketing, sale or the intendeduse of any product or service currently utilized, sold, provided or furnished by any Seller or anyAcquired Subsidiary (including, without limitation, the transmission, reproduction, use, displayor modifìcation (including fì-aming and linking of web site content) of any websites operated byany Seller or any Acquired Subsidiary (a) violates or conf1icts with any license or otheragreement between the Sellers or any Acquired Subsidiary, on the one hand, and any otherPerson, on the other hand, or (b) infringes, misappropriates or otherwise violates any proprietaryright of any other Person, including the rights of privacy or publicity of any Person. Except as

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set forth on Schedule 4.1 (k)(ii)( d), there is no pending or, to the Knowledge of Sellers,threatened, claim or litigation contcsting the validity, enforceability or ownership of theAcquired Intellectual Property owned by any of the Sellers or any Acquired Subsidiary Oï theright of any of Sellers or any Acquired Subsidiary to exercise any rights in the AcquiredIntellectual Propeiiy, nor, to the Knowledge of Sellers, is there any legitimate basis for any suchclaim. Except as set forth on Schedule 4.1(k)(ii)(e), neither any Seller nor any AcquiredSubsidiary has received any written notice asserting that any Acquired Intellectual Property, orthe proposed use, sale, license or disposition thereof, infringes, misappropriates or otherwiseviolates or will infringe, misappropriates or otherwise violate the rights of any other Person.

(iii) Schedule 4.1 (k)(iii) sets foiih a complete list of (a) allmaterial licenses, sublicenses and other agreements pursuant to which any of the Sellers or anyAcquired Subsidiary has granted to any Person the right to use any of the Acquired IntellectualPropeiiy owned by any of the Sellers or any Acquired Subsidiary; and (b) all consents,indemnifìcations, forbearances to sue, settlement agreements and material licensing or materialcross-licensing arrangements to which any Seller or any Acquired Subsidiary is a paiiy relatingto the Acquired Intellectual Property owned by any of the Sellers or any Acquired Subsidiary orthe Intellectual Property or other proprietary rights of any third party.

(iv) Sellers and the Acquired Subsidiaries take commercially

reasonable steps to protect the Acquired Intellectual Property and maintain the confìdentiality oftheir material trade secrets. To the Knowledge of Sellers, no employee, independent contractor,consultant or agent of any of the Sellers or the Acquired Subsidiaries has misappropriated ordisclosed any trade secrets or other confidential infoiination of any other Person in the course ofthe performance of his or her duties as an employee, independent contractor, consultant or agentof any of the Sellers or the Acquired Subsidiaries.

(v) The computer software owned or used by Sellers or the

Acquired Subsidiaries that is material to the conduct of their respective businesses as nowconducted, other than mass market software that is available and subject to "shrink-wrap" or"click-through" license agreements (collectively, the "Proprietary Software") is listed onSchedule 4.1 (k)(v)(a). Sellers or the Acquired Subsidiaries own all right, title and interest in andto the Proprietary Software, and have valid licenses to use, reproduce, modify and distribute allcopies of the software used in their respective businesses, and except as set forth in Schedule4.1(k)(v)(b), neither any Seller nor any Acquired Subsidiary has sold, licensed, leased orotherwise transferred or granted any interest or rights in or to any portion thereof. To theKnowledge of Sellers, none of the Proprietary Software, nor any use thereof, conflicts with,infringes upon or violates any Intellectual Property or other proprietary right of any other Person.Sellers and the Acquired Subsidiaries have taken the steps reasonably necessary to protect theirright, title and interest in and to the Proprietary Software, including, without limitation, theexecution of appropriate confidentiality agreements.

(vi) Sellers' and the Acquired Subsidiaries' use, license,

sublicense and sale of any user data collected from users of any website of Sellers or the

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Acquired Subsidiaries have complied in all material respects with each Seller's and the AcquiredSubsidiaries' published privacy policies in effect at the time such user data was collected, theterms of use of any website of Sellers or the Aequired Subsidiaries, and all applicable laws thatrelate to or gove11 the compilation, use and transfer of user data.

(1) Information Technology. Schedule 4.1 (I) includes a true andcomplete list of all material Contracts to which any Seller or any Acquired Subsidiary is a paiiyrelating to the current use of hardware, Proprietary Software, databases, computer equipinent andother inf0111ation technology, owned, leased or licensed by any Seller or any AcquiredSubsidiary (collectively, the "Information Technology"). Schedule 4.1 (1 does not list any massmarket software that is available and subject to "shrink-wrap" or "c1iek-through" licenseagreements.

(m) Pennits. Schedule 4.1 (m) sets forth a true and complete list of allmaterial Permits, and all pending applications therefor held by Sellers or any AcquiredSubsidiary. Except as set fOlih onSçli~çlule 4J.ún), each such Permit has been duly obtained, isvalid and in full force and effect. and is not subject to any pending or. to the Knowledge ofSellers, threatened administrative or judicial proceeding to revoke, cancel, suspend or declaresuch Permit invalid in any respect.

(n) Environmental Matters. To the Knowledge of Sellers, Sellers haveprovided or made available to Buyer copies of all information in possession of Sellers relating tothe presence, release or migration of Hazardous Materials on, in or under the Leased RealProperty and the compliance with, and potential liability under, applicable Environmental Lawsassociated with the Acquired Assets or any assets or property of any Acquired Subsidiary.

(0) Insurance. Schedule 4.1(0) sets forth a conect and complete list of

all current insurance policies covering Sellers or any Acquired Subsidiary. Except as set forth onSchedule 4.1 (0 ), all premiums required to be paid under each insurance policy required to be setforth on Schedule 4.1 (0) have been paid when due, and all such policies are in full force andeffect.

(p) Real Propeiiy. None ofthe Sellers or any Acquired Subsidiary

owns any real propeiiy that is used in connection with the conduct of the Business. Schedule.L sets foiih a true, conect and complete list of all and all instruments (the "Real Property

Leases") by which Seller or any Acquired Subsidiary is entitled to the use and/or possession ofthe Leased Real Property. Except as set fOlih on Schedule 4.1 (p), each Seller and each of theAcquired Subsidiaries has complied in all material respects with the provisions of the RealProperty Leases to which such Person is a party. True, complete and accurate copies of eachReal Property Lease have been delivered or made available to Buyer. Each of the Real PropertyLeases is in full force and effect. Neither any Seller nor any Acquired Subsidiary has assignedits interest under any Real Property Lease to which it is a paiiy, or subleased, licensed,encumbered or pledged all or any poiiion of its leasehold interest in any Real Property Lease, toany third party. No option has been exercised under any Real Propeiiy Lease, except optionswhose exercise has been evidenced by a written document delivered to Buyer. Except as set

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foiih on Schedule 4.1 (p), neither any Seller nor any Acquired Subsidiary is in default under anyReal Propeiiy Lease and, to the Knowledge of Seller, no controversy, claim, dispute ordisagreement exists between the parties to any Real Property Lease and, to the Knowledge ofSeller, no event has occulTed which \vith the passage of time or giving of notice, or both, wouldconstitute a default thereunder. All brokerage commissions and other similar compensation andfees payable in connection with the Real Property Leases have been paid in full and no additionalbrokerage commissions or other similar compensation and fees may be due in the future. Thereare no guarantees (from any Seller, any Acquired Subsidiary or from any other Person) in favorof the lessors under any of the Real Property Leases.

(i) To the Knowledge of Seller, there are no eminent domain

or other similar proceedings pending or threatened affecting any portion of the Leased RealProperty.

(ii) None of the Leased Real Property secures anyIndebtedness.

(q) Brokerage and Finder's Fees. No Seller, and none of Sellers'

Affiliates (including the Acquired Subsidiaries) or any of the oflcers or directors of any Seller or

any Affiliate of any Seller (including the Acquired Subsidiaries), has any liability or obligationto pay any fees or commissions to any broker, finder or agent with respect to the transactionscontemplated by this Agreement, with the exception of Houlihan, Lokey, Howard & Zukin.

(r) Benefit Plans. The Seller Benefit Plans are in compliance in all

respects with all applicable requirements of ERISA, the Code, and other applicable laws andhave been administered in material accordance with their teiins and such laws, except where thefailure to so comply has not had and would not, individually or in the aggregate, reasonably beexpected to have a Material Adverse Effect. No unsatisfied liability or withdrawal liability underTitle IV of ERISA has been or is expected to be incurred by any member of the Seller ControlledGroup that would reasonably be expected to have a Material Adverse Effect.

(s) Absence of Certain Developments. Since the Balance Sheet Date,

except as set forth on Schedule 4. I (s), no Seller nor the Acquired Subsidiaries has taken anyaction described in Section 5 .1(b) as if this Agreement had been executed on, and in effect since,the Balance Sheet Date.

(t) Material Contracts.

(i) Schedule 4.1(12 sets forth a complete and correct list of the

following Contracts to which any Seller or the Acquired Subsidiaries is a paiiy with respect tothe conduct of the Business or by which any of the Acquired Assets (or any assets or propertiesof the Acquired Subsidiaries) are subject or bound, in each case as in dfect on the date hereof~

and, if such Contract is not in \vriting, a description of any material terms thereof (collectively,and together with the Real Propeiiy Leases, the "Material Contracts"):

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(a) credit agreements, loan agreements, letters of credit,

repurchase agreements, moiigages, security af,rreements, guarantees, pledge agreements, trustindcntures, promissory notes or other documents or arrangements relating to the borrO\'ling ofmoney (whether as lender or borrower) or for lines of credit;

(b) Contracts under which the Sellers or any Acquired

Subsidiary have made advances or loans to any other Person;

(c) employment, severance, consulting, change ofcontrol or similar agreements;

(d) Contracts of guaranty, surety or indemni fication,

direct or indirect, by Sellers or any Acquired Subsidiary, in each case relating to the Business;

( e) Contracts with any labor union or association

representing any employee of any Seller or any Acquired Subsidiary with respect to the conductof the Business:

(f) Contracts for the sale or purchase of any material

assets, property or material rights, in each case relating to the Business that has occurred sinceFebruary 2004;

(g) Contracts relating to the acquisition (by merger,

purchase of stock or assets or otherwise) by any Seller or any Acquired Subsidiary of anyoperating business or assets or the capital stock of any other Person, in each case relating to theBusiness, that has occurred since February 2004;

(h) Contracts limiting or restraining any Seller or any

Acquired Subsidiary, with respect to the conduct of the Business, fì"om engaging or competing in

any lines of business with any Person or not to solicit or hire any Person with respect toemployment;

(i) Contracts for joint ventures, strategic alliances,

paiinerships, licensing arrangements, or sharing of profìts or proprietary information, in eachcase relating to the conduct of the Business;

U) material licenses or other material agreements

pertaining to the lntellectual Property used in connection with the conduct of the Business;

(k) Contracts requiring payments to or by a Seller or

any Acquired Subsidiary, "'lith respect to the conduct of the Business, of more than $ i 00,000 inany year or $400,000 over the life of any such Contract; and

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(1) Contracts between any subsidiary of any Seller or

any Acquired Subsidiary on the one hand, and any Seller or any of their respective Affliates orany current or former oftìcer, director, stockholder or any subsidiary theleot~ on the other hand;

(ii) Except as set forth on Schedule 4.1 (t), each Material

Contract is in full force and effect and is a valid and binding obligation of the Seller or theAcquired Subsidiary party thereto and, to the Knowledge of Sellers, the other parties thereto, inaccordance with its tenns and conditions, except as such enforceability may be limited bybankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rightsgenerally and general principles of equity. No party to any Material Contract has notified any

Seller or any Acquired Subsidiary in writing (or, to the Knowledge of Sellers, verbally), that itintends to te111inate such Material Contract, and no party has given notice in writing (or, to theKnowledge of Sellers, verbally) of any significant dispute with respect to any Material Contract.Sellers have made available to Buyer true and complete originals or copies of all the MaterialContracts, together with all amendments, modifications or supplements thereto.

(u) Customers and Vendors.

(i) Schedule 4.1 (u) sets forth a true, complete and correct list

of the twenty (20) largest customers (the "Major Customers") and twenty (20) largest vendors(the "Major Vendors") for each business unit of the Business (considered as a whole), in eachcase for the fiscal year ended December 31, 2008. Sellers have previously provided or madeavailable to Buyer a copy of, all material written contracts, commitments, agreements and otherarrangements with the Major Customers, including all amendments, modifications andsupplements thereto. There are no material oral contracts, commitments, agreements and otherarrangements between Sellers or any Acquired Subsidiary on the one hand, and any MajorCustomer, on the other hand.

(ii) Except as set foiih on Schedule 4.1(u), none of the Sellers

or any Acquired Subsidiary has received any written notice, and none of the Sellers or anyAcquired Subsidiary has reason to believe, that any Major Customer (i) has ceased, or in thereasonably foreseeable future may cease, to use the services of the Sellers or the applicableAcquired Subsidiary, (ii) has substantially reduced, or in the reasonably foreseeable future maysubstantially reduce, the use of the services of the Sellers or the applicable Acquired Subsidiaryor (iii) has terminated or materially altered, or in the reasonably foreseeable future wouldreasonably be expected to terminate or materially alter its business relations with the Sellers orthe applicable Acquired Subsidiary.

(iii) Except as set forth in Schedule 4.1(u), none of the Sellers

nor any Acquired Subsidiary has received any written notice, and none of the Sellers nor theapplicable Acquired Subsidiary has reason to believe, that any Major Vendor to the Sellers or theapplicable Acquired Subsidiary has terminated or materially altered, or in the reasonablyforeseeable future would reasonably be likely to tellninate or materially alter, its businessrelations with the Sellers or the applicable Acquired Subsidiary.

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(v) Accounts Receivable. All Accounts Receivable have arisen hom

bona fide transactions in the ordinary course of business and are payable no ordinary trade terms,and represent legal, valid, binding and enforceable obligations to a Seller or an AcquiredSubsidiary. Except as set forth in Schedule 4.1(v), none of the Accounts Receivable (i) aresubject to any counterclaims or set-offs, or (ii) represent obligations for goods sold onconsignment, on approval or on a sale or return basis or subject to any other repurchase or returnarrangement.

(w) Taxes.

(i) All material Tax Returns with respect to each Seller and the

Acquired Subsidiaries that are required to be filed have been filed (or extensions have been dulyobtained) and all amounts shown to be due and owing or to be withheld thereon have been dulyand timely paid or withheld as the case may be (except for the period prior to the commencementof the Reorganization Case, that may not be paid except pursuant to a plan of reorganizationunder the Bankruptcy Code).

(ii) There is no material Lien for Taxes upon any of the

Acquired Assets (or any of the assets or propeiiies of any Acquired Subsidiary) nor is any taxingauthority in the process of imposing, or has threatened in writing (or, to the Knowledge ofSellers, verbally) to impose, any material Lien for Taxes on any of the Acquired Assets (or anyof the assets or properties of any Acquired Subsidiary), other than Liens for Taxes that are notyet due and payable or for Taxes the validity or amount of which is being contested by a Selleror an Acquired Subsidiary in good faith by appropriate action and for which appropriateprovision has been made in accordance with GAAP.

(iii) Each Seller and each Acquired Subsidiary has withheld

from their respective employees, independent contractors, creditors, stockholders and thirdparties and timely paid to the appropriate taxing authority proper and accurate amounts in allmaterial respects for all taxable periods, or portions thereof, ending on or before the ClosingDate in compliance with all Tax withholding and remitting provisions of applicable laws andhave each complied in all material respects with all withholding Tax information repoiiingprovisions of all applicable Laws.

(iv) No Acquired Subsidiary has been a United States real

property holding corporation within the meaning of Section 897(c)(ii) during the applicableperiod specifìed in Section 897(c)(1)(A)(ii) of the Code. No Acquired Subsidiary is a party toany Tax allocation or sharing agreement. No Acquired Subsidiary (A) has been a member of anaf1liated group filing a consolidated federal income Tax return or (B) has any Liability for theTaxes of any Person under Treasury Regulation Section 1.1502-6 (or any similar provision ofstate, local, or non-U.S. law), as a transferee or successor, by contract, or otherwise.

(v) No Acquired Subsidiary is or has been a party to any"repoiiable transaction," as defined in Section 6707A(c)(1) of the Code and Treasury RegulationSection 1.60 11-4(b).

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(vi) To the Knowledge of Seller, (i) the Acquired Joint Ventureis classified as a paiinership for United States federal income tax purposes, and (ii) the applicableSeller has at all times since it acquired its interest in the Acquired Joint Venture repOlied itsinterest in the Acquired Joint Venture on its Tax Retul1s as an interest in an entity that isclassifìed as a Paiinership for United States federal income tax purposes

(x) AfÌliate Assets. Except as set fOlih on Schedule 4.1 (x) and other

than the Transferred Intemet Domain Names and the Excluded Asscts, thcn: arc no asscts thatare owned by an AfÌliate of a Seller or any Acquired Subsidiary which are used in connectionwith the conduct of the Business.

(y) Disclaimer of Other Representations and Wananties. Except as

expressly set forth in this Section 4.1 or any document delivered in accordance with thisAgreement, Sellers make no representation or representation or warranty, express or implied, atlaw or in equity, in respect of Sellers, their Affliates (including, but not limited to, the AcquiredSubsidiaries), or their assets (including, inter alia, the Acq..uired Assets), liabilities (including,.' . - .inter alia. the Assumed Liabilities) or (merations (including. inter alia. the Business), including/ -'..' ;,..' .' - . '",-'with respect to title, merchantability or fìtness for any particular purpose and any such otherrepresentations or warranties are hereby expressly disclaimed. Buyer hereby acknowledges andagrees that, except to the extent expressly set forth in this Section 4.1, Buyer is purchasing theAcquired Assets on an "as is, where is, with all faults" basis and disclaims all waHanties orguarantees, whether express or implied. Sellers shall not be liable in contract or in toii for anyspecial, incidental, liquidated, punitive or consequential damages relating to any claim made byBuyer based upon, or arising from, this Agreement. Buyer acknowledges and agrees that anyconsequences arising from Sellers' fìling of the Bankruptcy Case in accordance with thisAgreement shall not be deemed a breach of any of the representations or warranties set fOlih inthis Agreement.

SECTION 4.2 Representations and Warranties of Buyer.

Buyer hereby represents and warrants to Sellers as follows:

(a) Corporate Organization. Buyer is a limited liability company duly

organized, validly existing and in good standing under the laws of the State of Delaware and hasall requisite limited liability company power and authority to own its properties and assets and toconduct its businesses as now conducted.

(b) Authorization and Validity. Buyer has all requisite limited liability

company power and authority to enter into this Agreement and any Ancillary Agreement towhich Buyer is or will become a paiiy and to perform its obligations hereunder and thereunder.The execution and delivery of this Agreement and any Ancilary Agreement to which Buyer is orwill become a party and the perfol11ance of Buyer's obligations hereunder and thereunder havebeen duly authorized by all necessary action by the Managing Member of Buyer, and no othercorporate proceedings on the paii of Buyer are necessary to authorize such execution, deliveryand perfol1nance. This Agreement and each Ancillary Agreement to which Buyer is or will

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become a party have been, or, in the case of those Ancillary Agreements to be executed atClosing, on the Closing Date will be, duly executed by Buyer and constitute, or will constitute,when executed and delivered, Buyer's valid and binding obligations, enforceable against it inaccordance with their respective terms except as may be limited by bankruptcy or other lawsaffecting creditors' rights and by equitable principles.

(c) No Conf1ict or Violation. The execution, delivery and

performance by Buyer of this Agreement and any Ancillary Agreement to which Buyer is or willbecome a paiiy do not and wil not (i) violate or conflict with any provision of the ceiiificate offormation or operating agreement of Buyer, (ii) violate any provision oflaw, or any order,judgment or decree of any court or Govemment Authority applicable to Buyer or (iii) violate orresult in a breach of or constitute (with clue notice or lapse of time or both) a default under anyContract to which Buyer is paiiy or by which Buyer is bound or to which any of Buyer'spropeiiies or assets is subject.

(d) çQmç))J§ and Approvals. No consent, waiver, authorization or

approval of any Person and no declaration to or tìling or registration with any GovemmentAuthority is required in connection with the execution and delivery by Buyer of this Af,rreement

and each Ancilary Agreement to which Buyer is or will become a paiiy or the performance byBuyer of its obligations hereunder or thereunder.

(e) Adequate Assurances Regarding Acquired Contracts. Buyer is (or,

after the Closing, will be) capable of satisfying the conditions contained in Sections 365(b)(1 )(C)and 365(f)(2)(B) of the Bankruptcy Code with respect to the Acquired Contracts.

(f) Brokerage and Finder's Fees. Neither Buyer, its Affliates nor or

any of their officers or directors will be responsible for any liability or obligation to pay any feesor commissions to any broker, finder or agent engaged by such parties with respect to thetransactions contemplated by this Agreement.

(g) Buyer's Financing. Buyer (i) has sufficient cash to pay thePurchase Price and other amounts required by Sections 2.1 and 2.2 and other provisions of this

Agreement, or (ii) will have at Closing an amount of cash suffcient to fund the Closing DatePayment and to pay costs or expenses payable by Buyer.

(h) Disclaimer of Other Representations and Wa1lanties. Except as

expressly set forth in this Section 4.j or any document delivered in accordance with thisAgreement, Buyer makes no representation or warranty, express or implied, at law or in equity,in respect of Buyer, its Affiliates, or their respective assets, liabilities or operations. Buyer shallnot be liable in contract or in toii for any special, incidental, liquidated, punitive or consequentialdamages relating to claim made by a Seller based upon, or arising from, this Agreement.

SECTION 4.3 Warranties Are Exclusive.

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The parties acknowledge that the representations and warranties contained in thisArticle 4 and any document delivered by the parties in accordance with the terms of thisAgreement are the only representations or warranties given by the paiiies and that all otherexpress or implied warranties are disclaimed.

ARTICLE 5

COVENANTS AND OTHER AGREEMENTS

SECTION 5.1 Pre-Closing Covenants of Sellers.

Sellers covenant to Buyer that, during the period from the Execution Date throughand including the Closing Date or the earlier termination of this Agreement:

(a) General. Sellers will use reasonable efforts to take all action andto do all things necessary in order to consummate and make efTective the transactionscontemplated by this Agreement (including satisfactlOn, but not waiver, of the Closingconditions set foiih in Article 7 herein).

(b) Operation of Business. Subject to any restrictions and obligations

imposed by the Bankruptcy Court and applicable law, Sellers will, and Sellers will cause theAcquired Subsidiaries to, operate the Business in good faith and in a manner intended to preserverelationships with customers, suppliers and employees of the Business. In particular, Sellersshall be prohibited from doing, and shall not permit the Acquired Subsidiaries to do, any of thefollowing in respect of the Acquired Assets (or the assets or propeiiies of any AcquiredSubsidiary) or the operation of the Business: (i) disposing of, encumbering, pledging or allowingany Lien to be placed on, or transferring any Acquired Asset (or the assets or properties of anyAcquired Subsidiary), except for the sale of such assets in the Ordinary Course of Business, (ii)amending, tell11inating or modifying any of the Acquired Contracts (or any Contract to whichany Acquired Subsidiary is a party or otherwise bound) or (iii) voting in favor of amending,tem1inating or modifying any of the JV Organizational Documents, or (iv) making any change inthe compensation payable or to become payable to the employees of Sellers or any AcquiredSubsidiary (except as may be required pursuant to any Contract set foiih on Schedule 4.1 (t) orany Employee Benefit Plan in efTect on the date hereof). In addition, from and after the datehereof until the earlier of the Closing Date and the termination of this Agreement in accordancewith the terms of Article 8 hereof, except (x) as expressly provided in this Agreement, includingin connection with the Auction, (y) as set forth on Schedule 5.1 (b) or (z) with the express writtenapproval of Buyer, no Seller shall, and Sellers shall cause the Acquired Subsidiaries not to:

(i) make any capital expenditure with respect to the Business

in excess of $1 00,000 individually, or $400,000 in the aggregate during the period beginning onthe date hereof through and including the Closing Date;

(ii) enter into any Contract for or relating to the Business that

cannot be assigned to Buyer or a peiinitted assignee of Buyer under Section 10.3;

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(iii) enter into any Contract for the purchase of real property in

connection with the conduct of the Business;

(iv) enter into any lease of real propeiiy in connection with the

conduct of the Business;

(v) purchase any assets in excess of $50,000 individually or

$200,000 in thc aggrcgatc;

(vi) cancel, compromise or settle any debt or claim or waive or

release any material right of the Sellers or any Acquired Subsidiary relating to the Business;

(vii) enter into, or agree to enter into, any sale-leaseback

transactions with respect to the Business;

(viii) to the extent related to any Acquired Asset, accelerate or

dejay coHection of any Accounts Receivabje generated by the Business in advance of or beyondtheir regular due dates;

(ix) to the extent related to any Acquired Asset, collect or agree

to collect any Account Receivable for less than the amount billed therefor;

(x) to the extent related to any Acquired Asset or Assumed

Liability, delay or accelerate payment of any account payable or other Liability of the Businessbeyond or in advance of its due date;

(xi) fail to maintain the Acquired Assets (and the assets and

propeiiies of any Acquired Subsidiary) in their present condition (ordinary wear and tearbetween sinnino and Closino excepted)'b b ' b ,

(xii) institute any new, or, except as may be required pursuant to

any Contract set forth on Schedule 4.1 (t) or any Seller Benefit Plan in effect on the date hereof:increase (including any increase in coverage) any existing, profït-sharing, bonus, incentive,deferred compensation, severance, insurance, pension, retirement, medical, hospital, disability,welfare or other employee benefit plan with respect to directors, offïcers or employees of theBusiness;

(xiii) other than in the Ordinary Course of Business and except as

may be required pursuant to any Contract set forth on Schedule 4.1 (t) or any Seller Benefìt Plan,change the compensation (including salary, bonus or incentive compensation) of the directors,of1ìcers or employees of or independent contractors or consultants to, any Seller or anyAcquired Subsidiary in connection with the conduct of the Business;

(xiv) enter into or amend any collective bargaining, employment,

deferred compensation, severance, consulting, independent contractor, nondisclosure, non-

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competition or similar agreement (or amend any such agreement) to which any Seller or anyAcquired Subsidiary is a paiiy in connection with the conduct of the Business or involving anyof any such Seller or any Acquired Subsidiary's respective directors, oflicers or employees Ìn hisor her capacity as a director, oftcer or employee of such Seller or any Acquired Subsidiary inconnection with the conduct of the Business, except in the case of non-disclosure agreementsentered into in the ordinary course of business or in connection with the Auction;

(xv) establish, adopt, enter into, amend or rnodify any Seller

Benefit Plan (or any arrangement that would be a Seller Benefit Plan if it were in existence as ofthe date of this Aureement).b ,

(xvi) make or rescind any material election in relation to Taxesother than as would not be material to the Acquired Assets;

(xvii) transfer, issue, sell or dispose of any shares of capital stock

or other securities of any Seller or any Acquired Subsidiary or the Acquired Joint Venture;

(xviii) enter into or amend any agreement (or incur anycommitment) that involves or is reasonably likely to involve total annual expenditures by Sellersor any Acquired Subsidiary or total annual revenues to Sellers or any Acquired Subsidiary inexcess of $200,000;

(xix) incur any Indebtedness, enter into any material guarantee,

indemnity or other agreement to secure any obligation of a third party or voluntarily create anyLien (other than Permitted Liens), Encumbrance or Claim for the benefit of a third party overany of the Acquired Assets or any of the assets or properties of any Acquired Subsidiary;

(xx) enter into any Contract between a Seller or any Acquired

Subsidiary, on the one hand, and any of their respective Affiliates or any current or formerofficer, director, stockholder or any subsidiary thereof, on the other hand;

(xxi) change any accounting policy, principle or method or

practice except as required by GAAP;

(xxii) amend the ceiiificate of incorporation or by-laws orcomparable organization documents of any Seller or any Acquired Subsidiary;

(xxiii) (A) (i) modify, assume, reject or terminate any MaterialContract in any material respect, or (B) enter into or modify any Contract containing materialpenalties which would be payable as a result of~ and upon the consummation of, the transactioncontemplated by this Agreement;

(xxiv) sell, lease (as lessor), transfer or otherwise dispose of(including any transfer tì-om the Business to any Aftliates of Sellers), or mortgage or pledge, orvoluntarily impose or suffer to be imposed, any Encumbrance on (other than Assumed Liabilities

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and Permitted Liens) any of the Acquired Assets or any of the assets or properties of anyAcquired Subsidiary;

(xxv) grant or acquire, agree to grant to or acquire fì'om anyPerson, or dispose of or peiinit to lapse any rights to, any material Intellectual Propeiiy (exceptfor grants of non-exclusive licenses in the Ordinary Course of Business), or disclose or agree todisclose to any Person, other than representatives of Buyer, any material trade secret;

(xxvi) fail to use its reasonable best efìorts to perform and honorall of its postpetition obligations under any Contract as they become due and otherwise dischargeand satisfy all Liabilities thereunder as and when they become due;

(xxvii) transfer any or all of the Art Collection Assets;

(xxviii) increase the Cash Collateral Amount or Lease DepositAmount;

(xxix) grant any license, sublicense or covenant not to sue to any

Person relating to any material portion of the Acquired Intellectual Property;

(xxx) in the case of any Acquired Subsidiary, either (A) declare,set aside or pay any dividend or other distribution with respect to any Acquired Equity Interest,or (B) redeem, purchase or otherwise acquire any Acquired Equity Interests; or

(xxxi) enter into any agreement or commitment to take any actionprohibited by this Section 5. I(b).

Each of the paiiies hereto acknowledges and agrees that, between the date hereof and theRepresentation Effective Date, (i) Sellers may propose that additional disclosures be added toSchedule 5. I(b) relating solely to the Acquired Subsidiaries, which disclosures must bereasonably satisfactory to Buyer, and (ii) notwithstanding anything contained herein to thecontrary, the parties shall work together in good faith to agree on additions to Schedule 5.1 (b ), itbeing understood that any such additions to Schedule 5. l(b) shall be subject to Buyer's writtenapproval. Upon receipt of Buyer's written approval of any such additions to Schedule 5.1 (b),such additional disclosure shall be deemed to have been disclosed for all purposes.

(c) Access to Records and Propeiiies. Subject to Section 5.1(£, Buyer

shall be entitled, and Sellers shall permit (and shall cause the Acquired Subsidiaries to permit)Buyer and its representatives, to conduct such investigation of the condition (financial orotherwise), businesses, assets, properties or operations of the Sellers and the AcquiredSubsidiaries as Buyer shall reasonably deem appropriate.

(i) Without in any way limiting Section 5.1 (£, Sellers shall

and shall cause the Acquired Subsidiaries to (A) provide Buyer and its representatives access atany reasonable time during normal business hours to the facilities and offces of the Sellers and

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the Acquired Subsidiaries and to all of the books and records of the Sellers and the AcquiredSubsidiaries, including, without limitation, to perf 01111 field examinations and inspections of the

Sellers' and the Acquired Subsidiaries' inventories, facilities, equipment and other assets andproperties, including access to the Data Center for hardware and software deployment, training,testing and pre-cutover system engineering to facilitate a timely systems transition following theClosing; and (B) cause the Sellers' (and the Acquired Subsidiaries') representatives to furnishBuyer with such iinancial and operating data and other inforn1ation with respect to the condition(financial or otherwise) of the Business and the assets, properties or operations of Seliers or theAcquired Subsidiaries as Buyer shall reasonably request; provided, however, that Buyer and itsrepresentatives shall (x) coordinate all requests for access and inforn1ation with the ChiefExecutive Offcer of Sellers' Representative and (y) use all commercially reasonable efforts toprevent any such investigation from interfering in any material way with the operation of thebusiness of the Sellers or the Acquired Subsidiaries.

(ii) Buyer will treat and hold as such any Confidential

Information it receives tì-om the Sel1ers or the Acquired Subsidiaries, including, withoutlimitation, any Confidential Information it received prior to the Execution Date. Buyer will notuse any of the Coniidential Inièm11ation it (or its representatives) receives in connection with thetransactions contemplated by this Agreement except in connection with this Agreement. If thisAgreement is tell11inated for any reason whatsoever, Buyer will return to the Sellers all tangibleembodiments (and all copies) of the Contìdential Information which are in its possession.

(d) Notice of Ceiia in Events. Sellers' Representative shall promptlynotify Buyer oC and furnish Buyer any inforn1ation it may reasonably request with respect to, theOCCUlTence of any event or condition or the existence of any fact that would reasonably be

expected to cause any of the conditions to Buyer's obligations to consummate the transaction(s)contemplated by this Agreement or by any Ancillary Agreement not to be fulfilled. It isacknowledged and understood that no notice given pursuant to this Section 5.l(d) shall have anyefTect on the representations, warranties, covenants or agreements contained in this Agreementfor purposes of determining satisfaction of the conditions contained herein.

(e) Assignment of Transferred Internet Domain Names. Sellers shalluse commercially reasonable efToiis to cause their Affliates who are the registered holders of theTransfelTed Internet Domain Names to assign and transfer to Sellers, at or prior to the Closing,all of such Transferred Internet Domain Names, other than those set forth on Schedule 5.1 ( e) (the"Subject Internet Domain Names"). The Transferred Internet Domain Names (other than theSubject Internet Domain Names), shall be transferred to Buyer at the Closing pursuant to Sectionii hereof. The assignment and transfer to Sellers, at or prior to Closing, of the TransferredIntemet Domain Names (other than the Subject Internet Domain Names) shall be a conditionprecedent to the Closing pursuant to Section 7. j( g).

(f) Contact with Customers, Vendors and Emplovees. Neither Buyernor anyone acting on its behalf shall contact any employee, consultant, customer, supplier,vendor or distributor of the Business between the date hereof and the Closing Date for purposes

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of discussing (and neither Buyer nor anyone acting on its behalf shall discuss with any suchPerson) the Business, the Acquired Assets, the Acquired Equity Interests, the AcquiredSubsidiaries, the Acquired Joint V cnturc or the transactions contemplated hereby except (i) asexpressly permitted by this Section 5.10) or (ii) with the Sellers' Representative's writtenconsent, such consent not to be unreasonably withheld, conditioned or delayed. Subject to clause(ii) of the f1rst sentence of this Section 5.10), prior to the Closing Date, Sellers shall, and shallcause the Acquired Subsidiaries to, use their commercially reasonable efforts to facilitateBuyer's (and al1 of its agcnts and representatives, and any of its employees, consultants, directorsand offcers) contact and communication with the employees, consultants, customers, suppliers,vendors and distributors of the Business, it being understood that (i) Sellers shall be entitled tocoordinate the timing of any such contact and communication (and to paiiicipate in any and allsuch contact and communication) and (ii) any inquiries made by Buyer with any of the foregoingPersons shall be made in such a manner as not to interfere unreasonably with the Business.

(g) Third Party Consents. Sellers shall, at their sole cost and expense,use their reasonable best efTorts to obtain the Consents set forth on ,ScllÇ.Q.\leJ.l(f) to the extentsuch consents are not provided for or satisfied by the Bankruptcy Sale Order; nrovided, however,that neither Sellers nor any Acquired Subsidiary shall be required to expend material funds toobtain the Consents.

(h) Insurance. Until the Closing, Sellers and, to the extent the

Acquired Equity Interests are included in the Acquired Assets, the Acquired Subsidiaries, shallmaintain (including necessary renewals thereof) insurance policies against risk and liabilities tothe extent and in the manner and at the levels maintained by Sellers and the AcquiredSubsidiaries as of the date hereof with respect to the Business and the Acquired Assets (and theassets and properties of the Acquired Subsidiaries).

(i) Monthly Financial Statements. As soon as reasonably practicable,

but in no event later than twenty-tìve (25) days after the end of each calendar month during theperiod from the date hereof to the Closing, Sellers shall and shall cause the AcquiredSubsidiaries to provide Buyer with (i) consolidating unaudited monthly financial statements(including a balance sheet and related statements of earnings) of Sellers and the AcquiredSubsidiaries, in each case on a consolidating basis (understanding such tìnancial statements willnot include any inter-company eliminations), and (ii) operating or management reports, in eachcase, for such preceding month, which tìnancial statements shall disclose the AccountsReceivable as of the date of such financial statements.

(j) Target/Chip Ganassi Racing. Prior to the Closing, Sellers shall use

their commercially reasonable effoiis to cause an agreement to be entered into by and betweenTarget/Chip Ganassi Racing and Polaroid-designated direct model paiiners, pursuant to whichthe second $2,750,000 racing payment currently owing by Polaroid would be paid by percentagededuction from invoice by Target/Chip Ganassi Racing against future payments through 2009 todirect model suppliers. Notwithstanding the foregoing, the entry into the Contract referred to inthe immediately preceding sentence shall require the prior written consent of Buyer.

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SECTION 5.2 Pre-Closing Covenants of Buyer.

Buyer covenants to Sellers that, during the period fì'om the Execution Datethrough and including the Closing Date or the earlier termination of this Agreement:

(a) General. Buyer will use reasonable efforts to take all action and todo all things necessary in order to consummate and make etTective the transactions contemplatedby this Agreement (including satisü1Ction, but not waiver, of the Closing conditions set Tr.)iih inArticle 7 herein). Buyer shall take such actions as may be reasonably requested by Sellers toassist Sellers in obtaining the Bankruptcy Court's entry of the Orders and any other order of theBankruptcy Court reasonably necessary to consummate the transactions contemplated by thisAgreement.

(b) Permits. Buyer shall use commercially reasonable efforts to

promptly obtain or consummate the transfer to Buyer of any Pem1it required to own or operatethe Acquired Assets under applicable laws.

(c) Notice of Ceiiain Events. Buyer shall promptly notify Sellers'

Representative of~ and fumish Sellers' Representative any information it may reasonably requestwith respect to, the occurrence of any event or condition or the existence of any fact that wouldreasonably be expected to cause any of the conditions to Seller's obligations to consummate thetransactions contemplated by this Agreement or by any Ancillary Agreement not to be fulfìlled.It is acknowledged and understood that no notice given pursuant to this Section 5.2(c) shall haveany effect on the representations, wananties, covenants or agreements contained in thisAgreement for purposes of detem1ining satisfaction of the conditions contained herein.

SECTION 5.3 Other Covenants of Sellers and Buyer.

(a) Filings. During the period from the Execution Date through and

including the Closing Date or the earlier termination of this Agreement, Sellers and Buyer shallreasonably cooperate with one another in obtaining all authorizations, consents, and approvals ofGovemment Authorities that may be or become necessary in connection with the consummationof the transactions contemplated by this Agreement, and to take all reasonable actions to avoidthe entry of any order or decree by Govemment Authorities prohibiting the consummation of thetransactions contemplated hereby, and shall fumish to the other all such information in itspossession as may be necessary for the completion of the notifìcations to be filed by the other.Without limiting the foregoing, Sellers and Buyer will, ifrequired, (i) take all actions necessaryto make the fiings required of them or their Affliates under the HSR Act with respect to thetransactions contemplated by this Agreement as promptly as practicable following the ExecutionDate, (ii) comply with any request for additional information received from the Federal TradeCommission or the Antitrust Division of the Department of Justice pursuant to the 1.ISR Act, (iii)cooperate with each other in connection with fiings under theHSR Act and (iv) request earlytermination of the applicable waiting period.

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(b) Improper Receipt of Payment. From and after the Closing Date, (i)Sellers shall promptly forward to Buyer any and all payments received by Sellers fì'om customersor any other Persons that constitute part of the Acquired Assets and (ii) Buyer shall promptlyforward to Sellers any and all payments received by Buyer from customers or any other Personsthat constitute part of the Excluded Assets.

(c) Disclosure Schedule Supplements. Sellers' Representative, on the

one hand, shall notify Buyer of, and Buyer on the other hand, shali notify Seliers' Representativeof and shall supplement or amend the Schedules to this Agreement with respect to, any matterthat (i) may arise after the delivery of the Schedules hereunder and that, if existing or occUlTingat or prior to such delivery of the Schedules, would have been required to be set forth ordescribed in the Schedules to this Agreement (with the exception of representations andwananties relating to any Acquired Subsidiary, with respect to which additional disclosurebetween the date hereof and the Representation Effective Date shaH be governed by thefirstparagraph of Aliicle 4) or (ii) makes it necessary to conect any infoll11ation in the Schedules to

this !-)grcenicnt or in any representation and \"/arranty of Sellers or Buyer, as applic-able~ that has

been rendered inaccurate thereby. Each sücl-ì notification and supplen1cntation (vvith theexception of representations and warranties relating to any Acquired Subsidiary, with respect towhich additional disclosure between the date hereof and the Representation Effective Date shallbe governed by the first paragraph of Aliicle 4) shall be made no later than three (3) days beforethe date set for the Closing by the parties, it being understood that, except with respect to theaddition to the Schedules of Material Contracts entered into after the date hereof in accordancewith Section 5. I, information contained in any supplement to the Schedules provided pursuant tothis Section 5.3 shall not be deemed to cure any breach for purposes of Aiiicle 7 hereof. For theavoidance of doubt, the parties acknowledge and agree that the effect of disclosure of additionalinformation relating to any Acquired Subsidiary shall be governed by the first paragraph ofArticle 4.

(d) Transition Services.

(i) For the period commencing on the Closing Date and ending

on the later of (x) the closing of the Bankruptcy Case and (y) three years after the Closing Date(the "Transition Period"), Sellers and their representatives shall have reasonable access to, andshall have the right to photocopy at their own expense, all of the books and records, includingany computerized databases and files and programs and associated software relating solely to thepre-Closing operations and business of the Sellers and/or the Acquired Assets and AssumedLiabilities as they existed as of the Closing Date, including but not limited to (i) theinvestigation, evaluation and prosecution of any and all claims retained by Sellers, (ii) theevaluation, allowance, distribution and defense of or objection to any and all claims broughtagainst Sellers, their Affiliates or their estates, and (iii) employee's records or other personneland medical records, as of the Closing Date, required by law, legal process or subpoena. Duringthe Transition Period, Buyer agrees to provide Sellers and any of their representatives, uponreasonable request and notice, with reasonable access to employees of Buyer (who may beformer employees of Sellers) for purposes of~ among other things, winding down the estates of

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Sellers, pursuing Claims against Persons and completing the Bankruptcy Case. Access pursuantto this Section shall be atTorded by Buyer upon receipt of reasonable advance notice, duringn0l11al business hours and in a manner that does not materially interfere with the Buyer'sbusiness. Sellers and their representatives agree to treat contìdentially any information obtainedpursuant to this Section, including the books and records. If Buyer shall desire to dispose of anysuch books and records prior to expiration ofthe Transition Period, Buyer shall, prior to suchdisposition, give Sellers a reasonable opportunity at Sellers' expense, to segregate and removesuel1 books and records as Sellers ll1ay select.

(ii) At the Closing, Sellers and Buyer shall enter into a

transition services agreement containing tel11S and conditions that are reasonably acceptable tothe paiiies hereto, including, without limitation, those described on Schedule 5.3(d)(ii) (the"Transition Services Agreement") providing for (i) ceiiain transition services to be provided bySellers to Buyer and its Affìliates after the Closing (the "Suver Transition Services"), and (ii)certain transition services to be provided by Buyer to Sellers and their Aftìliates, including,\vithout linîitation, PG\\l and each ofthc Persons set forth on Schedule 5.11 (the "SellersTransition Services"). Schedule 5.3(d)(ii) sets forth (/\.) a general description of

the types of

services that will be provided by Sellers relating to the Buyer Transition Services, (B) a generaldescription of the types of services that will be provided by Buyer relating to the SellersTransition Services, and (C) with respect to the information technology services to be providedby Sellers to Buyer only, the maximum aggregate monthly amount that will be charged bySellers in connection with the provision of such services, and, with respect to all other servicesreferred on Schedule 5 .3( d)(ii), the methodology for the computation of the amounts to be paidby Sellers or Buyer, as applicable, in respect thereof. For the avoidance of doubt, the partiesacknowledge and agree that, notwithstanding clauses (A) and (B) of

this Section 5.3(d)(ii), the

specifìc services that will constitute the Buyer Transition Services and Sellers TransitionServices shall be negotiated in good faith, by Sellers and Buyer, between signing and Closingand reflected in the Transition Services Agreement, provided that such services will include,without limitation, those listed on Schedule 5.3(d)(ii). The parties agree that the TransitionServices Agreement shall provide that any Buyer Transition Service or Seller Transition Servicemay be terminated (in whole or in paii) on ten (l0) days written notice, and that all fees payablein respect of any such transition service shall be subject to pro ration for partial periods.

( e) Letters of Credit. During the period from the Execution Date

through and including the Closing Date or the earlier teiinination of this Agreement, Sellers and

Buyer shall work together in good faith to determine the amount of cash on deposit securing anyAcquired Letters of Credit (the "Cash Collateral Amount"). Attached as Schedule 5.3(e) isSellers' good faith estimate of the Cash Collateral Amount as of the date hereof~ it beingunderstood and agreed that the amount set forth on Schedule 5.3(e) represents the cash collateralin respect of all outstanding letters of credit, and the Cash Collateral Amount shall only includethe cash collateral with respect to any letter of credit that constitutes an Acquired Letter of Creditat the Closing.

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(f) Subject Intemet Domain Names. If the Subject Intemet Domain

Names are not transferred to Buyer (or its designee) at the Closing, then Sellers shall, promptlyfollowing the Closing, cause their Atfliates who are the registered holders of the SubjectIntemet Domain Names to assign and transfer such Subject Intemet Domain Names to Buyer (orits designee), such transfers to be effected free and clear of all Liens, Claims and Encumbrances.

SECTION 5.4 Employment Covenants and Other Undertaking.

(a) Future Emplovment. Prior to the Closing, Buyer shall provideoffers of employment to those current employees and offcers of Sellers and Affìliates of Sellersas identified by Buyer in its sole discretion, on similar teiiTI as they are currently employed.Such employees and/or otfcers who accept Buyer's offer of employment, and commenceemployment with Buyer on or following the Closing are referred to as "Trans felTed Employees."

Sellers will be solely responsible for obligations (including notice) under the WARN Act (andany similar state law or other applicable law) that arise based in any part on events that occurtì-om or after the Closing with respect to any employees of Sellers that are not -rransferred1::1-nnlr-".r0P('~i..Ll.lJJ.V Y' \"V'..l.

(b) COBRA. Sellers shall provide, or cause to be provided, to anycurrent of fèm11er employee of the Sellers, other than a Transfened Employee, (and suchindividual's "qualifìed benefìciaries" within the meaning of COBRA) whose "qualifying event"(within the meaning of COBRA) occurs on or prior to the Closing with such COBRAcontinuation coverage as any such individual has elected or may elect. Buyer shall provide, orshall cause to be provided, COBRA continuation coverage to any Transfened Employee (andsuch individual's qualifìed beneiìciaries) whose qualifying event occurs after the Closing.

(c) No Right to Employment. Notwithstanding Section 5.4(a), nothing

herein expressed or implied shall confer upon any of the employees of Sellers any right toemployment or continued employment for any specified period, of any nature or kind whatsoeverunder or by reason of this Agreement.

SECTION 5.5 Ownership of Polaroid Name and Acquired Intellectual Property.

(a) Sellers covenant and agree that Sellers shall, and Sellers shall

cause (i) all of their Atfliates (other than the Acquired Subsidiaries, to the extent that theAcquired Equity Interests are included by Buyer as an Acquired Asset) and (ii) PGW and each ofits Affiliates which use the Polaroid Name, to pass all required resolutions and to amend theirrespective certificates of inCOl1JOration or formation or other organizational documents to changetheir corporate or company name to a name that does not include the word "Polaroid" or anyname intended or likely to be confused or associated with the Polaroid Name or product no laterthan the Closing Date.

(b) Sellers acknowledge that the Polaroid Name and all other Acquired

Intellectual Property shall be and remain, subsequent to the Closing, the sole and exclusive

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propeiiy of Buyer. Prior to the Closing, Sellers shall terminate any Contract granting a non-subsidiary Aftìliate the right to use any Acquired Intellectual Propeiiy.

(c) Subsequent to the Closing, subject to Sections 5.5(d) and 5.12,none of Sellers or any of their Affliates (other than any Acquired Subsidiary in the event that theAcquired Equity Interests are included by Buyer as an Acquired Asset) shall have any right, titleor interest in or to, and Buyer is not granting Seller or any of its Affliates, a license to use, thePolaroid Name or any of the Acquired Intellectual Property.

(d) The obligations in this Section 5.5 shall not apply (i) to the extentuse of the Polaroid Name is required by law or otherwise reasonably required pending theregistration of the change of corporate names (as set out in this Section 5.5), (ii) to the extent useof the Polaroid Name is reasonably required in order to enable collection or payment of invoicesissued by Sellers or any of their Affiliates, (iii) to the extent the Polaroid Name is reasonablyrequired to pursue a Claim or (iv) to the extent the Polaroid Name is reasonably required inconnection with the Bankruptcy Case.

SECTION 5.6 Non-Assignment of Acquired Contracts. Sellers shall use theirreasonable best etTOiis to obtain any consent, approval or amendment, if any, required to novateand/or assign any Acquired Contract to be assigned to Buyer hereunder which the BankruptcyCourt determines is not able to be assumed and assigned under section 365( c) of the BankruptcyCode (a "Nonassignable Contract"). Sellers shall keep Buyer reasonably informed from time totime of the status of the foregoing and Buyer shall cooperate with Sellers in this regard. To theextent that the rights of Sellers under any Nonassignable Contract, or under any other AcquiredAsset, may not be assigned without the consent of a third party which has not been obtained priorto the Closing, this Agreement shall not constitute an agreement to assign the same. If any suchconsent has not been obtained or if any attempted assignment would be ineffective or wouldimpair Buyer's rights under the instrument in question so that Buyer would not acquire thebenetìt of all sueh rights, then Sellers, to the maximum extent peiinitted by applicable law andthe instrument, shall act as Buyer's agent in order to obtain for Buyer the benefits thereunder andshall cooperate, to the maximum extent peiinitted by applicable law and the instrument, withBuyer in any other reasonable arrangement designed to provide such benefits to Buyer(including, without limitation, by entering into an equivalent arrangement); provided, however,that after Closing, Buyer shall be responsible for all payment and other obligations under, and forall costs of obtaining such rights under such Non-Assignable Contract.

SECTION 5.7 Bankruptcy Actions.

(a) Bankruptcy Sale Motion. Within three Business Days following

the date hereof~ Sellers shall tìle with the Bankruptcy Court a motion seeking approval of theBankruptcy Bidding Procedures Order and the Bankruptcy Sale Order (the "Bankruptcy SaleMotion"), in a form that is acceptable to Buyer in its sole discretion.

(b) Bankruptcy Bidding Procedures Oïder. For purposes of this

Agreement, "Bankruptcv Bidding Procedures Order" shall mean the order of the Bankruptcy39

Doc!! 2824622\8

Couii in the fOll11 attached as Exhibit F hereto (A) approving sale procedures and biddingprotections in connection with the sale of substantiall y all of the debtors' assets pursuant toSections 363 and 365 of the Bankruptcy Code; (B) scheduling an auction and hearing to considerapproval of the sale of substantially all of the debtors' assets (the "Auction"); and (C) grantingrelated relief. Sellers shall use their reasonable efTorts so that the Bankruptcy Court, as paii of itsBankruptcy Bidding Procedures Order, (A) schedules a hearing to approve this Agreement, (B)requires the payment of the Break-Up Fee and Expense Reimbursement in accordance with theterms of Section 8.3 hereof and (C) requires a deposit in the amount of the Deposit in accordancewith Section j.J hereof.

( c) Bankruptcy Sale Order. For purposes of this Agreement, the term

"Bankruptcy Sale Order" shall mean the order of the Bankruptcy Court entered pursuant toSections 363 and 365 of the Bankruptcy Code the foiin attached as Exhibit G hereof, in part, (A)approving this Agreement and the transactions contemplated hereby; (B) approving the sale ofthe Acquired Assets to Buyer fì"ee and clear of all Liens, Claims and Encumbrances pursuant toSection 363(t) ofthc Bankruptcy Code, (C) finding that Buyer is a good-faith purchaser entitledto the protections of Sectiûn 363(ni) ofthc Bankruptcy Code; (D) confirniing that BUj!cr isacquiring the Acquired Assets free and clear of the Excluded Assets and the Excluded Liabilities;

(E) providing that the provisions of Rules 6004(g) and 6006(d) of the Federal Rules of

Bankruptcy Procedure are waived and there will be no stay of execution of the Bankruptcy SaleOrder under Rule 62(a) of the Federal Rules of Civil Procedure; and (F) retaining jurisdiction ofthe Bankruptcy COlli to interpret and enforce the terms and provisions of this Agreement.

(d) Bankruptcy Assignment Motion and Order. Sellers shall use

commercially reasonable eÍÌoiis to file with the Bankruptcy Couii, at least (20) days prior to theSale Hearing, a motion (which may be included in the Bankruptcy Sale Motion) for an order (the"Bankruptcy Assignment Order") authorizing the assumption and assignment pursuant to Section365 of the Bankruptcy Code of the Acquired Contracts (the "Bankruptcy Assignment Motion" ).The Acquired Contracts have been, or shall be, identified on an exhibit to the BankruptcyAssignment Motion. Such exhibit shall set forth the amounts necessary to cure defaults undereach of such Acquired Contracts as determined by Sellers based on Sellers' books and records.In cases in which Seller is unable to establish that a default exists based upon a review of itsbooks and records, or other relevant information, the relevant cure amount shall be set at $0.00.Buyer agrees to cooperate with Sellers in connection with furnishing införmation pertaining tothe satisfaction of the requirement of adequate assurances of future performance as requiredunder Section 365(f)(2)(B) of the Bankruptcy Code.

( e) Notice and Reasonable Efförts. Sellers shall provide appropriate

notice of the hearing(s) on the Bankruptcy Sale Motion, the Bankruptcy Assignment Motion,and, after approval by the Bankruptcy COlli, the Auction, as is required by the Bankruptcy Codeand the Bankruptcy Rules and other applicable law to all parties entitled to notice, including, butnot limited to, all paiiies to the Acquired Contracts and all taxing and environmental authoritiesin jurisdictions applicable to Sellers. Sellers shall also publish notice of the hearing(s) on theBankruptcy Sale Motion, the Bankruptcy Assignment Motion, and the Action in at least one (1)

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national newspaper and one (l) regional newspaper, each in a f0111 reasonably acceptable to theBuyer. Thereatter, Sellers shall take all actions as may be reasonably necessary to cause each ofsuch orders to be issued, entered and become a Final Order.

(f) Excluded Assets. Notwithstanding anything herein to the contrary,

Sellers shall have the right, in their sole discretion (but on notice to Buyer) to reject any or allExcluded Assets, including any or all contracts other than the Acquired Contracts, and to take allactions necessary to effectuate any such rejection or rejections, including prosecuting a motion inthe Bankruptcy COlli seeking authorization, as necessary, to reject such Excluded Assets.

(g) Appeals of Bankruptcy Orders. It~ following the Closing, any of

the Orders or any other order of the Bankruptcy Couii relating to this Agreement shall beappealed by any Person (or a petition for certiorari or motion for rehearing or reargument shallbe filed with respect thereto), Buyer shall take all steps as may be reasonable and appropriate todefend against such appeal, petition or motion, at Buyer's sole cost and Sellers agree tocooperate in such efforts, and each party hereto shall endeavor to obtain an expedited resolutionof such appeaL.

SECTION 5.8 Covenant Not to Compete.

(a) For a period commencing on the Closing Date and ending on the

five year anniversary of the Closing Date (the "Restricted Period"), Sellers shall not, directly orindirectly, for themselves or on behalf of or in conjunction with any Person, establish, finance,own, manage, operate, engage in or otherwise participate in the conduct of any business that isthe same or substantially similar to the Business.

(b) During the Restricted Period, Sellers shall not (i) directly orindirectly solicit, encourage or attempt to solicit or encourage any of the employees, agents,independent contractors, consultants or representatives of Buyer to terminate his, her or itsrelationship with Buyer; (ii) directly or indirectly solicit, encourage or attempt to solicit orencourage any of the employees, agents, independent contractors, consultants or representativesof Buyer to become employees, agents, representatives, consultants or independent contractors ofany other Person; (iii) hire or continue to employ any Person who was offered employment byBuyer pursuant to Section 5.4(a); (iv) directly or indirectly solicit or attempt to solicit anycustomer, vendor or distributor of Buyer with respect to any product or service being fUllished,made, sold or leased by Buyer relating to the Business; or (v) persuade or seek to persuade anycustomer of Buyer to cease to do business or to reducc the amount of business that suchcustomer has customarily done prior to the Closing Date with Sellers, or contemplates doingwith Buyer.

(c) The Parties expressly acknowledge that it would be diffìcult to

measure the damages that might result tì-om any breach of this Section 5.8, and that any suchbreach will result in immediate, substantial and irreparable injury to Buyer for which it will haveno adequate remedy at law. Buyer shall be entitled to, without the posting of any bond, aninjunction or other equitable relief issued by a court of competent jurisdiction enjoining and

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restraining any violation or threatened violation of this Section 5.8 by Sellers. Sellersacknowledge and agree that this Section 5.8 is (i) a material inducement for Buyer to enter intothis Agreement and consummate the transactions contemplated hereby, and (ii) reasonable underthe circumstances to protect the Acquired Assets and goodwill acquired by Buyer under thisAgreement. Rights and remedies provided for in this Section 5.8 are cumulative and shall be inaddition to rights and remedies otherwise available to the Parties hereunder or under any otheragreement or applicable law.

(d) If any provision contained in this Section 5.8 is for any reason held

invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability willnot affect any other provisions of this Section, but this Section will be construed as if suchinvalid, illegal or unenfòrceable provision had never been contained herein. The Parties intendthat if any of the restrictions or covenants contained herein is held to cover a geographic area orto be for a length of time which is not permitted by applicable law, or in any way construed to betoo broad or to any extent invalid, such provision will not be construed to be null, void and of noeffect, but to the extent such provision yvould be valid or enforceable under applicable lavv" acourt of C01Yipctcnt jurisdiction \\:'i11 construe and interpret or ref 01111 this Section 5.8 to provide

fòr a covenant having the maximum enforceable geographic area, time period and otherprovisions (not greater than those contained herein) as will be valid and enforceable under suchapplicable law.

SECTION 5.9 Ceiiain Litigation.

(a) From and after the date hereof, unless this Agreement shall be terminatedin accordance with its terms, neither Sellers nor any of their controlled subsidiaries shallcommence or proceed with any Cause of Action they may have against a Person identified onSchedule 1.j(h), provided that neither Sellers nor any of such controlled subsidiaries shall beprohibited from defending themselves against or asserting a counterclaim or a right ofrecoupment or setoff in response to any Cause of Action or Claim brought, commenced, fied orasserted by such Person listed on Schedule 1.2(h) against any of the Sellers or any suchcontrolled subsidiaries.

(b) Nothing contained in this Agreement shall limit Sellers' rights in respect

of the Excluded Assets.

SECTION 5.10 Competing Transactions.

From the date hereof through the date on which the Bankruptcy BiddingProcedure Order is entered, Sellers shall not, and shall cause their respective oí1cers, directors,employees, agents and representatives not to (a) solicit or initiate any inquiries regarding thesubmission of any Alternate Proposal, (b) paiiicipate in any discussions or negotiationsregarding, or furnish to any Person any infòiination with respect to, any Alternate Proposal, (c)enter into any agreement with respect to any Alternate Proposal or approve any AlternateProposal, or (d) propose any plan of reorganization or plan of liquidation to retain or dispose ofthe Acquired Assets. Upon execution of this Agreement and through the date on which the

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Bankruptcy Bidding Procedure Order is entered, Sellers shall and shall cause their respectiveoftìcers, directors, employees, agents and representatives to, immediately cease any existingactivities, discussions, or negotiations with any parties conducted heretotè)l"e with respect to anyof the foregoing. Notwithstanding the foregoing, prior to the entry of the Bankruptcy BiddingProcedures Order, Sellers may furnish inforn1ation concerning the Business to any Person orgroup, and may negotiate and participate in discussions and negotiations \vith such Person orgroup concerning an Alternate Proposal if (x) Sellers have not breached this Section 5.10, (y)such Person or l:'fOUP has submitted an unsolicited written .A!ternate Proposal that the Board of

Directors of PH determines (after consultation with outside legal counsel and the financialadvisor to Sellers) constitutes or is reasonably likely to lead to a Superior Proposal (as hereindefìned), and (z) Sellers, in the exercise of their fiduciary duties (after consultation with outsidelegal counsel and the fìnancial advisor to Sellers) determine that such action is in the best interestof their Chapter 11 estates and creditors, provided that Sellers shall only be pern1itted to take theforegoing action if (l) no less than one (l) Business Day prior to furnishing any such informationor entering into any such discussions or negotiations, Sellers provide Buyer written notice ofttieir intention to take such action, (2) such Person has cxccütcd a confidentiality agrcen1cnt thatcontains terms and conditions that are at least restrictive as those signed by Buyer in connectionwith its consideration of the transactions contemplated hereby, and (3) contemporaneously withfurnishing any such information to such Person or group, Sellers furnish Buyer a list (which listmay be nothing more than a reference to the vIiiual data room maintained in connection with thetransactions contemplated hereby) of such information provided to such Person or group and, tothe extent such information has not been previously furnished to Buyer, copies of suchinforn1ation.

SECTION 5.1 I Ri ght of First RefusaL.

Sellers hereby grant Buyer a right of TÌrst refusal (the "Preemptive Right") to (i)purchase equity in, or any and all assets owned by, as of the date hereof: the entities listed onSchedule 5.11 (such assets, the "EMEA Assets") and (ii) to the extent any Acquired EquityInterest is not included in the Acquired Assets hereunder, purchase equity in, or any and allassets owned by, as of the date hereof: the applicable Acquired Subsidiary (the "AcquiredSubsidiary ROFR" and, together with the EMEA Assets, the "ROFR Assets") that Scllers ortheir Affliates may, fìom time to time, propose to transfer or sell to an unaffliated third paiiy,other than sales of assets in the ordinary course. Such Preemptive Right shall allow Buyer topurchase the ROFR Assets proposed to be sold by any Seller in an amount determined inaccordance with Section 5.1l(a) below.

(a) In the event that any Seller proposes to undeliake a sale of any or

all of the ROFR Assets, it shall give Buyer written notice of its intention (the "ROFR Notice"),describing the ROFR Assets it intends to sell, the purchase price therefor (which shall be payablesolely in cash by Buyer), and the tern1S and conditions upon which the applicable Seller proposesto sell the same. Buyer shall have ten (l0) Business Days following the date the ROFR Notice isgiven to Buyer to dete1l1ine whether to purchase all, but not less than all, of the ROFR Assetsproposed to be sold by Sellers for the purchase price and upon the terms and conditions specitìed

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in the ROFR Notice by giving written notice to the applicable Seller(s) (a "Preemptive RightsNotice"), 'vvhich Preemptive Rights Notice shall be binding on Buyer.

(b) If Buyer has not agreed to purchase the ROFR Assets included inthe ROFR Notice in accordance with the terms included therein and the provisions of Section5.11 (a) hereof~ then Sellers shall have the right to sell all such ROFR Assets included in theROFR Notice (the "Rejected Assets") at a price not less than ninety-tìve percent (95%) of

the

price contained 11 the ROFR Notice and on non-price tem1S no less favorable (taken as a whole)to Sellers than those contained in the ROFR Notice; provided, that (i) Sellers have fully compliedwith the provisions of this Section 5.11 and (ii) such sale of the Rejected Assets is consummated

by Sellers within 90 days after the sending of the ROFR Notice to Buyer pursuant to Section5.11 (a) hereof~ provided that, if such sale is subject to regulatory approval, such 90-day periodshall be automatically extended until the expiration offìve (5) Business Days after suchapprovals have been received, but in no event later than 365 days fro11 the date of the ROFRNotice. In the event that the issuance and sale of the Rejected Assets is not fully consummatedby Sellers prior to the end of such period, the provisions of this ~ectiol1 5.11 must be again becornplicd "vvith b~i Sellers before Sellers inay issue or sell any P..cjectcd !\.ssets.

(c) This Section 5.11 shall terminate upon the earlier of (i) a

termination of this Agreement or (ii) the sale by Sellers of all ROFR Assets in accordance withthis Section 5.11.

SECTION 5.12 Use of Names. Notwithstanding anything contained hereinto the contrary, for a period of90 days after the Closing Date, each of the Sellers' respectivecontrolled Af1liates (collectively, the "Subject Af1liates") shall have a non-exclusive, royalty-fìee, non-transferable license in the Territory to use any and all of the trademarks, service marks,trade dress, logos, trade names and corporate names included in the Acquired IntellectualProperty located on (i) any fìnished goods and other supplies owned by the Subject Affliates asof the Closing Date, (ii) any advertising or promotional materials used by the Subject Affìliatesas of the Closing Date and (iii) any stationery, business cards, business forms and other similaritems owned by any of the Subject Af1liates as of the Closing Date; provided, however, that theSellers shall only permit the Subject Affliates to use such trademarks, service marks, trade dress,logos, trade names and corporate names in the operation of their respective businesses in theordinary course consistent with past practice, it being understood and agreed that the Sellers shallnot permit the Subject Affiliates to use any such Acquired Intellectual Propeiiy in connectionwith any other activities. Without limiting the foregoing, during such 90-day period, the Sellersshall not permit any Subject Affìliate to: (a) hold itself out as having any af1liation orrelationship of any kind with Buyer or any Affiliate thereof or (b) use such AcquiredlntellectualPropeiiy in a manner that would be reasonably likely to ref1ect negatively thereon or on Buyer orits Affliates. The parties acknowledge and agree that the Subject Affìliates shall be entitled toenforce the provisions of this Section 5.1 j. For purposes hereof the "Territory" shall meanworldwide excluding the United States.

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SECTION 5.13 Ceiiain Affìliate Arrangements. Effective at the Closing,unless otherwise requested by Buyer in writing, all Contracts between any Acquired Subsidiary,on the one hand, and any Seller or any of their respective Affliates, on the other hand, shall betel11inated as between them and shall be without any further force and effect, and there shall beno fuiiher obligations of any of the relevant paiiies thereunder. Without limiting the foregoing,unless otherwise requested by Buyer in writing, all inter-company accounts, whether payables orreceivables, or other amounts or obligations between any Seller or any of their respectiveAt1lìates, on the one hand, and any Acquired Subsidiary, on the other hand, shall, effective as ofthe Closing, be extinguished and terminated with no amounts being paid or assets beingtransferred in connection therewith. At or prior to the Closing, Sellers shall deliver to Buyersuch documentation evidencing compliance with this Section 5.13 as Buyer may reasonablyrequest.

ARTICLE 6

1""/\.XES

SECTION 6.1 Taxes Related to Purchase of Acquired Assets.

All transfer, documentary, sales, use, stamp, registration and other such Taxes,and all conveyance fees, recording charges and other fees and charges (including any penaltiesand interest) inculTed in connection with the consummation of the transactions contemplated bythis Agreement (collectively, "Transfer Taxes") shall be paid by Buyer when due, and Buyershall, at its own expense, file all necessary Tax Retul1s and other documentation with respect toall such Taxes, fees and charges, and, if required by applicable law, the parties will, and willcause their Affliates to, join in the execution of any such Tax Retul1s and other documentation.Buyer and Sellers shall cooperate in good faith to (a) determine the amount of

Transfer Taxes

payable in connection with the transactions contemplated under this Agreement, (b) minimizethe amount of Transfer Taxes that may be imposed or assessed as a result of the Transaction, (c)provide all requisite exemption certificates to minimize the amount of

Transfer Taxes that may

be imposed or assessed as a result of the transactions contemplated hereby and (d) prepare andfile any and all required Tax Returns fè)r or with respect to such Transfer Taxes with any and allappropriate Govel1ment Authorities.

SECTION 6.2 Cooperation on Tax Matters.

(a) Buyer and Sellers shall furnish or cause to be fUl1ished to eachother, as promptly as practicable, such information and assistance relating to the Acquired Assetsand the Assumed Liabilities as is reasonably necessary for the preparation and filing of any TaxRetul1, claim for refund or other required or optional filings relating to Tax matters, for thepreparation for and proof of facts during any Tax audit, for the preparation for any Tax protest,tor the prosecution or defense of any suit or other proceeding relating to Tax matters and for theanswer to any Govemment Authority relating to Tax matters.

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