ITS AFFILIATES (AS DEFINED
HEREIN) IS BOUND THAT IS ENTERED INTO DURING THE PERIOD FROM THE DATE HEREOF TO
THE DATE OF THE CLOSING (THE "PRE-CLOSING PERIOD") AND WHICH DIRECTLY ARISES OUT
OF, RELATES TO OR RESULTS FROM THE BUSINESS (A "SELLER CONTRACT") TO THE EXTENT
THAT, PRIOR TO THE CLOSING, BUYER NOTIFIES THE SELLER ENTITIES IN WRITING THAT
SUCH SELLER CONTRACT IS A TRANSFERRED CONTRACT (IT BEING UNDERSTOOD THAT IF
DURING THE PRE-CLOSING PERIOD ANY SELLER ENTITY ENTERS INTO A SELLER CONTRACT
WITHOUT THE PRIOR WRITTEN CONSENT OF BUYER, THEN NOTWITHSTANDING THIS CLAUSE
(B), BUYER SHALL BE ENTITLED TO DESIGNATE SUCH SELLER CONTRACT AS A TRANSFERRED
CONTRACT OR AN EXCLUDED CONTRACT AT ANY TIME (EITHER BEFORE OR AFTER THE
CLOSING) WITHIN TEN (10) DAYS AFTER THE DATE A SELLER ENTITY PROVIDES BUYER WITH
A COPY OF SUCH SELLER CONTRACT AND NOTIFIES BUYER THAT SUCH SELLER CONTRACT WAS
ENTERED INTO DURING THE PRE-CLOSING PERIOD WITHOUT BUYER'S CONSENT) (SUCH
AGREEMENTS, CONTRACTS, UNDERSTANDINGS AND ARRANGEMENTS INCLUDED IN (A), (B) AND
(C) ABOVE, THE "TRANSFERRED CONTRACTS");
(VII)
ALL OF SELLER ENTITIES' RIGHT, TITLE AND INTEREST IN AND TO ALL
UNFILLED, STANDING OR OPEN CUSTOMER PURCHASE ORDERS DIRECTLY ARISING OUT OF,
RELATING TO OR RESULTING FROM THE BUSINESS EXISTING AS OF THE CLOSING THAT AROSE
IN THE ORDINARY COURSE OF BUSINESS (THE "ASSUMED ORDERS");
3
(VIII)
TO THE EXTENT ASSIGNABLE, ALL OF SELLER ENTITIES' RIGHT, TITLE AND
INTEREST IN AND TO ALL FRANCHISES, LICENSES, PERMITS, CERTIFICATIONS, APPROVALS
AND AUTHORIZATIONS DIRECTLY ARISING OUT OF, RELATING TO OR RESULTING FROM THE
BUSINESS;
(IX)
TRANSFERRED CONTRACTS OR OTHER ARRANGEMENTS FOR HOUSING AND
TRANSPORTATION FOR THE TRANSFERRED SECOND TERRITORY EMPLOYEES (EACH AS DEFINED
HEREIN);
(X)
(A) SOLELY TO THE EXTENT RELATED TO AN ASSUMED LIABILITY, ALL
CLAIMS (INCLUDING CLAIMS FOR INFRINGEMENT OR MISAPPROPRIATION OF ACON
INTELLECTUAL PROPERTY ASSETS AND/OR ACON IN-LICENSED INTELLECTUAL PROPERTY
ASSETS OR RIGHTS RELATED THERETO INCLUDED IN THE TRANSFERRED ASSETS (AS DEFINED
HEREIN)) AND (B) SOLELY TO THE EXTENT RELATED TO AN ASSUMED LIABILITY, CAUSES OF
ACTION OF SELLER ENTITIES AGAINST ANY OTHER PERSON, WHETHER OR NOT SUCH CLAIMS
AND CAUSES OF ACTION HAVE BEEN ASSERTED, AND ALL RIGHTS OF INDEMNITY, WARRANTY
RIGHTS, RIGHTS OF CONTRIBUTION, RIGHTS TO REFUNDS, RIGHTS OF REIMBURSEMENT AND
OTHER RIGHTS OF RECOVERY OF SELLER ENTITIES (REGARDLESS OF WHETHER SUCH RIGHTS
ARE CURRENTLY EXERCISABLE) DIRECTLY RELATING TO THE TRANSFERRED ASSETS, THE
ASSUMED LIABILITIES OR THE BUSINESS ARISING OUT OF CIRCUMSTANCES OCCURRING ON OR
AFTER THE CLOSING; AND
(XI)
ALL OTHER ASSETS AND PROPERTIES OF THE SELLER ENTITIES DIRECTLY
ARISING OUT OF, RELATING TO OR RESULTING FROM THE BUSINESS OF EVERY NATURE
WHATSOEVER TANGIBLE AND INTANGIBLE, AND WHEREVER LOCATED, SUCH AS ANY BUSINESS
RECORDS, CUSTOMER LISTS, CUSTOMER RECORDS, AND HISTORIES, CUSTOMER INVOICES,
LISTS OF SUPPLIERS AND VENDORS AND ALL RECORDS RELATING THERETO, LIST OF SALES
AGENTS, PRICE LISTS, ENGINEERING DRAWINGS, RECORDS WITH RESPECT TO PRODUCTION,
ENGINEERING, PRODUCT DEVELOPMENT COSTS, ADVERTISING MATTER, CATALOGUES,
PHOTOGRAPHS, INSTRUCTION MANUALS, SALES LITERATURE AND MATERIALS, PURCHASING
MATERIALS, MEDIA MATERIALS, MANUFACTURING AND QUALITY CONTROL RECORDS AND
PROCEDURES, RESEARCH