USED TO PAY EACH KEY EMPLOYEE WHO HAS
ACCEPTED THE PURCHASER'S OFFER OF EMPLOYMENT ANY AND ALL AMOUNTS (TO THE EXTENT
NOT ALREADY PAID), INCLUDING SALARY AND BONUSES, OWED BY THE SELLER OR ITS
AFFILIATES TO SUCH KEY EMPLOYEES THROUGH THE CLOSING DATE; PROVIDED, FURTHER,
THAT THE PURCHASER MAY PAY SUCH CREDITORS OR KEY EMPLOYEES DIRECTLY INSTEAD OF
MAKING ANY SUCH PAYMENTS TO THE SELLER AND ANY AND ALL SUCH PAYMENTS TO SUCH
CREDITORS OR KEY EMPLOYEES WILL BE CREDITED TOWARDS THE PURCHASE PRICE.
SECTION 2.04.
Closing.
Subject to the terms and conditions of this Agreement,
the sale and purchase of the Purchased Assets contemplated by this Agreement
shall take place at a closing (the "Closing") to be held at the offices of
Shearman & Sterling LLP, 1080 Marsh Road, Menlo Park, California 94025 at
10:00 A.M. California time on the later to occur of (a) March 31, 2004;
provided, however, that the Purchaser may, with a prior written notice to the
Seller on or prior to March 31, 2004, designate any date within 15 days from
March 31, 2004 as the earliest day of Closing, or (b) the fifth Business Day
following the satisfaction or waiver of all conditions to the obligations of the
parties set forth in Article VIII, or at such other place or at such other time
or on such other date as the parties hereto may mutually agree upon in writing
(the day on which the Closing takes place being the "Closing Date").
SECTION 2.05.
Closing Deliveries by the Seller.
At the Closing, the Seller
shall deliver or cause to be delivered to the Purchaser:
(A)
A BILL OF SALE SUBSTANTIALLY IN THE FORM OF EXHIBIT 2.05(A)(I)
(THE "BILL OF SALE"), AN ASSIGNMENT OF OWNED INTELLECTUAL PROPERTY SUBSTANTIALLY
IN THE FORM OF EXHIBIT 2.05(A)(II) (THE "ASSIGNMENT OF OWNED INTELLECTUAL
PROPERTY") AND AN ASSUMPTION AGREEMENT SUBSTANTIALLY IN THE FORM OF
EXHIBIT 2.05(A)(III) (THE "ASSUMPTION AGREEMENT," AND TOGETHER WITH THE BILL OF
SALE, THE ASSIGNMENT OF OWNED INTELLECTUAL PROPERTY, THE INTELLECTUAL PROPERTY
LICENSE AGREEMENT, THE TRAINING AGREEMENT, THE MANUFACTURING AGREEMENT, THE
DISTRIBUTION AGREEMENT AND THE TRANSITION SERVICES AGREEMENT, THE "ANCILLARY
AGREEMENTS"), EXECUTED COUNTERPARTS OF EACH OF THE ANCILLARY AGREEMENTS AND SUCH
OTHER INSTRUMENTS, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
PURCHASER, AS MAY BE REASONABLY REQUESTED BY THE PURCHASER TO TRANSFER THE
PURCHASED ASSETS TO THE PURCHASER OR TO EVIDENCE SUCH TRANSFER ON THE PUBLIC
RECORDS;
(B)
A TRUE AND COMPLETE COPY, CERTIFIED BY A REPRESENTATIVE DIRECTOR
OF THE SELLER OF THE RESOLUTIONS DULY AND VALIDLY ADOPTED BY THE BOARD OF
DIRECTORS AND THE SHAREHOLDERS OF THE SELLER EVIDENCING THEIR AUTHORIZATION OF
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE ANCILLARY AGREEMENTS AND
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY;
(C)
CERTIFICATES OF THE REPRESENTATIVE DIRECTORS OF THE SELLER
CERTIFYING THE NAMES AND SIGNATURES OF THE OFFICERS OF THE SELLER AUTHORIZED TO
SIGN THIS AGREEMENT AND THE ANCILLARY AGREEMENTS AND THE OTHER DOCUMENTS TO BE
DELIVERED HEREUNDER AND THEREUNDER;
(D)
THE OPINIONS, CERTIFICATES