LIENS, GUARANTIES OR OTHER AGREEMENTS OF SELLER SET FORTH ON
SCHEDULE 2.1(B)(IV) AND THE PURCHASE ORDERS, OTHER THAN THE EXCLUDED AGREEMENTS
(THE "ASSIGNED CONTRACTS");
(V)
ALL PERMITS (INCLUDING APPLICATIONS THEREFOR) USED IN THE CONDUCT
OF THE BUSINESS SET FORTH IN SCHEDULE 2.1(B)(V) (THE "ASSUMED PERMITS");
8
(VI)
ALL PREPAID EXPENSES LISTED IN SCHEDULE 2.1(B)(VI), AND ALL
PREPAID EXPENSES MADE FOLLOWING THE DATE HEREOF AND PRIOR TO THE CLOSING THAT
RELATE EXCLUSIVELY TO THE BUSINESS (THE "PREPAID EXPENSES"); AND
(VII)
ALL SECURITY DEPOSITS DEPOSITED BY OR ON BEHALF OF SELLER AS
LESSEE OR SUBLESSEE UNDER THE LEASES FOR THE PERSONAL PROPERTY LEASES (THE
"SECURITY DEPOSITS").
The foregoing notwithstanding, the definition of "Purchased Assets" shall not
include "Expensed Items" for purposes of the representations and warranties set
forth in Article III of this Agreement.
(C)
DEFINITION OF EXCLUDED ASSETS.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY SET FORTH IN THIS SECTION 2.1 OR ELSEWHERE IN THIS AGREEMENT, THE TERM
"PURCHASED ASSETS" SHALL NOT MEAN, REFER TO OR INCLUDE THE FOLLOWING
(COLLECTIVELY, THE "EXCLUDED ASSETS") TO THE EXTENT OWNED, USED OR HELD FOR USE
BY SELLER AS OF THE CLOSING:
(I)
CASH, CASH EQUIVALENTS, INVESTMENTS IN CASH, SECURITIES OR
OTHERWISE AND ALL SELLER BANK ACCOUNTS;
(II)
ALL REFUNDS OF TAXES WITH RESPECT TO TAXES PAID OR ACCRUED BY
SELLER AND NOT REIMBURSED OR PAID BY BUYER;
(III)
ALL CLAIMS, ACTIONS, DEPOSITS, PREPAYMENTS, REFUNDS, CAUSES OF
ACTION, CHOSES IN ACTION, RIGHTS OF RECOVERY, RIGHTS OF SET OFF, AND RIGHTS OF
RECOUPMENT OF ANY KIND OR NATURE (INCLUDING ANY SUCH ITEM RELATING TO TAXES) TO
THE EXTENT ATTRIBUTABLE TO THE EXCLUDED AGREEMENTS, EXCLUDED ASSETS OR THE
EXCLUDED LIABILITIES;
(IV)
ALL RIGHTS OF SELLER UNDER THIS AGREEMENT AND ANCILLARY AGREEMENT,
OR ANY OTHER AGREEMENT, CERTIFICATE, INSTRUMENT OR OTHER DOCUMENT EXECUTED AND
DELIVERED BY SELLER OR BUYER IN CONNECTION WITH THE TRANSACTION OR ANY SIDE
AGREEMENT BETWEEN SELLER AND BUYER ENTERED INTO ON OR AFTER THE DATE HEREOF;
(V)
ALL BOOKS AND RECORDS OF SELLER WHICH RELATE TO THE TAXES,
EXCLUDED AGREEMENTS OR EXCLUDED ASSETS; PROVIDED, HOWEVER, SELLER AGREES THAT IT
SHALL PROVIDE BUYER WITH COPIES OF, OR REASONABLE ACCESS TO, SUCH BOOKS AND
RECORDS TO THE EXTENT THAT ANY SUCH BOOKS AND RECORDS (I) RELATE TO ANY OF THE
BUSINESS, THE PURCHASED ASSETS OR ASSUMED LIABILITIES; AND (II) DO NOT REFLECT
CONFIDENTIAL INFORMATION OR PRIVILEGED MATERIALS;
(VI)
ALL ACCOUNTS RECEIVABLE AND ALL NOTES, BONDS AND OTHER EVIDENCES
OF INDEBTEDNESS, AND ALL SECURITY AGREEMENTS RELATED THERETO, INCLUDING ANY
RIGHTS WITH RESPECT TO ANY THIRD PARTY COLLECTION PROCEDURES OR ANY OTHER
ACTIONS OR PROCEEDINGS WHICH HAVE BEEN COMMENCED IN CONNECTION THEREWITH;
(VII)
ALL INTELLECTUAL PROPERTY OF SELLER, INCLUDING THE TRADE NAME
ADAPTEC AND DERIVATIVES THEREOF AND LOGOS ASSOCIATED THEREWITH AND ALL RELATED
TRADEMARKS AND SERVICE MARKS, AND SOFTWARE LICENSES.
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(VIII)
ALL ASSETS OTHER THAN PURCHASED ASSETS, INCLUDING BUT NOT LIMITED
TO LAND, BUILDINGS, LEASEHOLD IMPROVEMENTS, INFORMATION TECHNOLOGY SYSTEMS,
HARDWARE AND SOFTWARE (AND OTHER RELATED INTELLECTUAL PROPERTY) AND CUSTOM
EQUIPMENT INCLUDING SPECIFICALLY CUSTOM TEST FIXTURES SPECIFIC TO THE