AND DEVELOPMENT FILES, DESIGN HISTORY FILES, REGULATORY
DOCUMENTS (INCLUDING DOCUMENTS RETAINED AND/OR SUBMITTED TO REGULATORY
AGENCIES), DATA AND LABORATORY BOOKS AND MEDIA MATERIALS AND PLATES.(4)
Notwithstanding anything to the contrary set forth herein, the Seller Entities
reserve any and all rights arising from, relating to or resulting from ACON
Intellectual Property Assets and ACON In-Licensed Intellectual Property Assets
as reasonably necessary or useful to conduct (i) their respective obligations
contemplated by this Agreement and the other Transaction Documents, and (ii) the
testing, monitoring, diagnosing, prognostication, treatment, management or cure
of diabetes.
The assets and property of the Business of the Seller Entities being sold to and
purchased by Buyer under this Section 1.1(a) are herein referred to as the
"Transferred Assets."
(B)
THERE SHALL BE EXCLUDED FROM SUCH PURCHASE AND SALE THE FOLLOWING
ASSETS AND PROPERTY (THE "EXCLUDED ASSETS") OF THE SELLER ENTITIES:
(4)
ACON shall not be required to transfer imported inventory where
prohibited by applicable law and shall be entitled to retain cash and cash
equivalents.
4
(I)
ALL CASH, CASH EQUIVALENTS, BANK ACCOUNTS, BANK DEPOSITS, LIQUID
INVESTMENTS, DEPOSITS, PREPAID EXPENSES, AND INSURANCE ASSETS OF SELLER
ENTITIES;
(II)
ALL ASSETS PRIMARILY RELATING TO THE BUSINESS OF RESEARCHING,
DEVELOPING, MANUFACTURING, MARKETING AND/OR SELLING (A) NON-LATERAL FLOW
IMMUNOASSAY TECHNOLOGY AND PRODUCTS IN THE POINT OF CARE TESTING FIELD, (B)
OTHER NON-LATERAL FLOW IMMUNOASSAY PRODUCTS OR MEDICAL DEVICES SPECIFICALLY
DESIGNED FOR USE IN THE DIAGNOSTIC OR REFERENCE LABORATORY BUSINESS, (C) ALL
OTHER NON-LATERAL FLOW IMMUNOASSAY RELATED TECHNOLOGIES AND RELATED PRODUCTS
(EXCEPT FOR THOSE PRODUCTS DIRECTLY RELATED TO LATERAL FLOW IMMUNOASSAY PRODUCTS
THAT CONSTITUTE PRODUCTS), (D) ALL OTHER NON-LATERAL FLOW BUSINESSES OF THE
SELLER ENTITIES, AND (E) PRODUCTS RELATED TO THE TESTING, MONITORING, DIAGNOSIS,
PROGNOSTICATION, TREATMENT, MANAGEMENT OR CURE OF DIABETES (COLLECTIVELY, THE
"EXCLUDED BUSINESSES");
(III)
SUBJECT TO THE RIGHTS AFFORDED TO BUYER UNDER THE ANCILLARY
AGREEMENTS (AS DEFINED HEREIN), THE RETAINED ACON INTELLECTUAL PROPERTY ASSETS;
(IV)
ALL RIGHTS UNDER EACH CONTRACT SET FORTH ON SCHEDULE 1.1(B)(IV)
AND SPECIFICALLY IDENTIFIED AS A DUAL USE CONTRACT (THE "DUAL USE CONTRACTS") OR
AS DESIGNATED AS AN "EXCLUDED CONTRACT" PURSUANT TO THE LAST PARAGRAPH OF THIS
SECTION 1.1;
(V)
ALL CONTRACTS OF THE SELLER ENTITIES OTHER THAN TRANSFERRED
CONTRACTS;
(VI)
ALL EMPLOYEE BENEFIT PLANS AND ARRANGEMENTS, INCLUDING ALL
EMPLOYEE PLANS (AS DEFINED HEREIN);
(VII)
ANY AND ALL CLAIMS OF THE SELLER ENTITIES FOR PREPAID TAXES OR
REFUNDS OF TAXES (AS DEFINED HEREIN) OR RIGHTS TO USE TAX ATTRIBUTES, INCLUDING,
BUT NOT LIMITED TO, LOSSES CARRIED FORWARD, TAX CREDITS, INVESTMENT CREDITS OR
DEPRECIATION ALLOWANCE, ALL ARISING FROM OR RELATING TO ANY PERIOD (OR A PORTION
OF ANY PERIOD) ENDING ON OR BEFORE THE CLOSING;
(VIII)
CORPORATE SEALS AND CHOPS, CERTIFICATES OF INCORPORATION OR
BUSINESS LICENSES, MINUTE BOOKS, STOCK TRANSFER RECORDS, AND OTHER SIMILAR
RECORDS RELATED TO THE CORPORATE ORGANIZATION OF THE SELLER ENTITIES;
(IX)
ALL PERSONNEL RECORDS AND OTHER RECORDS THAT THE SELLER ENTITIES
ARE REQUIRED BY LAW TO RETAIN IN THEIR POSSESSION; PROVIDED, THAT COPIES OF
DOCUMENTS RELEVANT TO BUYER'S OPERATION AND MANAGEMENT