ITEMS
SET FORTH ON SCHEDULE 2.01(D);
(E)
ALL OF SELLER'S RIGHTS, CLAIMS, CREDITS, CAUSES OF ACTION OR
RIGHTS OF SET-OFF AGAINST THIRD PARTIES RELATING TO THE BUSINESS, INCLUDING,
WITHOUT LIMITATION, UNLIQUIDATED RIGHTS UNDER MANUFACTURERS' AND VENDORS'
WARRANTIES;
(F)
ALL OF THE BUSINESS INTELLECTUAL PROPERTY, EXCEPT FOR THE
INFRASTRUCTURE SOFTWARE AND ANY OTHER BUSINESS INTELLECTUAL PROPERTY EXPRESSLY
IDENTIFIED AS AN EXCLUDED ASSET UNDER SECTION 2.02 BELOW, INCLUDING WITHOUT
LIMITATION THE ITEMS LISTED ON SCHEDULE 3.12;
(G)
ALL TRANSFERABLE LICENSES, PERMITS OR OTHER GOVERNMENTAL
AUTHORIZATIONS AFFECTING, OR RELATING IN ANY WAY TO, THE BUSINESS, INCLUDING
WITHOUT LIMITATION THE ITEMS LISTED ON SCHEDULE 3.03;
(H)
ALL BOOKS, RECORDS, FILES AND PAPERS, WHETHER IN HARD COPY OR
COMPUTER FORMAT USED BY SELLER OR HELD BY SELLER FOR USE IN CONNECTION WITH THE
BUSINESS, INCLUDING, WITHOUT LIMITATION, ENGINEERING INFORMATION, SALES AND
PROMOTIONAL LITERATURE, MANUALS AND DATA, SALES AND PURCHASE CORRESPONDENCE,
LISTS OF PRESENT AND FORMER SUPPLIERS, LISTS OF PRESENT AND FORMER CUSTOMERS,
ALL CALL-IN, TRACKING, WARRANTY AND OTHER INFORMATION RELATING TO THE
RELATIONSHIP
5
BETWEEN THE SELLER AND ITS CUSTOMERS, PERSONNEL AND EMPLOYMENT RECORDS (TO THE
EXTENT THE SAME MAY BE TRANSFERRED OR ASSIGNED UNDER APPLICABLE LAW), AND ALL
INFORMATION RELATING TO TAXES IMPOSED ON OR WITH RESPECT TO THE BUSINESS; AND
(I)
ALL GOODWILL ASSOCIATED WITH THE BUSINESS OR THE PURCHASED
ASSETS, TOGETHER WITH THE RIGHT TO REPRESENT TO THIRD PARTIES THAT BUYER IS THE
SUCCESSOR TO THE BUSINESS.
2.02
EXCLUDED ASSETS. BUYER EXPRESSLY UNDERSTANDS AND AGREES THAT THE
FOLLOWING ASSETS AND PROPERTIES OF SELLER (THE "EXCLUDED ASSETS") SHALL BE
EXCLUDED FROM THE PURCHASED ASSETS:
(A)
ALL OF SELLER'S CASH AND CASH EQUIVALENTS ON HAND AND IN BANKS;
(B)
ANY PURCHASED ASSETS SOLD OR OTHERWISE DISPOSED OF IN THE ORDINARY
COURSE OF OPERATION OF THE BUSINESS AND NOT IN VIOLATION OF ANY PROVISIONS OF
THIS AGREEMENT DURING THE PERIOD FROM THE DATE HEREOF UNTIL THE CLOSING DATE;
(C)
ALL INFRASTRUCTURE SOFTWARE;
(D)
ALL ACCOUNTS, NOTES AND OTHER RECEIVABLES USED BY SELLER OR HELD
BY SELLER FOR USE IN CONNECTION WITH THE BUSINESS;
(E)
EXCEPT AS SET FORTH ON SCHEDULE 5.05, ANY AND ALL INTELLECTUAL
PROPERTY RIGHTS IN AND TO THE NAME "CLEARSTORY"; AND
(F)
ALL ASSETS OF SELLER THAT ARE NOT PURCHASED ASSETS.
2.03
ASSUMPTION OF LIABILITIES. UPON THE TERMS AND SUBJECT TO THE
CONDITIONS OF THIS AGREEMENT, BUYER AGREES, EFFECTIVE AT THE CLOSING, TO ASSUME
THE FOLLOWING LIABILITIES (THE "ASSUMED LIABILITIES"):
(A)
ALL LIABILITIES AND OBLIGATIONS OF SELLER ARISING UNDER THE
CONTRACTS (OTHER THAN LIABILITIES OR OBLIGATIONS ATTRIBUTABLE TO ANY FAILURE BY
SELLER TO COMPLY WITH THE TERMS THEREOF EXCEPT (I) TO THE EXTENT RESERVED FOR IN
THE SELLER'S FINANCIAL STATEMENTS AND SPECIFICALLY DISCLOSED TO BUYER, (II) FOR
OBLIGATIONS OF SELLER UNDER WARRANTY CLAIMS OR EXPENSES ASSUMED UNDER
SECTION 2.03(B) OR (III) AS SPECIFICALLY IDENTIFIED ON SCHEDULE 2.03(A))
INCLUDING, WITHOUT LIMITATION OBLIGATIONS ASSOCIATED WITH DEFERRED REVENUE;
(B)
ALL WARRANTY CLAIMS OR EXPENSES OF SELLER IN RESPECT OF PRODUCTS
SOLD OR SERVICES RENDERED BY THE BUSINESS THROUGH THE CLOSING DATE, BUT ONLY TO