AS EVIDENCED BY AN
AMENDMENT TO
2
SCHEDULE 1.1(A)(III)(A) TO BE ACKNOWLEDGED BY THE PARTIES AND DELIVERED AT THE
CLOSING (COLLECTIVELY, THE "CONTRACTS"). NOTWITHSTANDING THE FOREGOING, TO THE
EXTENT SELLER HAS NOT PROVIDED BUYER WITH EXECUTED COPIES OF ANY OF THE
CONTRACTS FOR REVIEW PRIOR TO THE DATE HEREOF (EACH AN "UNPRODUCED CONTRACT"),
SELLER SHALL, WITHIN 45 DAYS OF THE DATE HEREOF, PROVIDE ANY SUCH UNPRODUCED
CONTRACTS TO BUYER FOR ITS REVIEW. BUYER MAY, IN ITS SOLE DISCRETION, REFUSE TO
ACCEPT TRANSFER OF ANY SUCH UNPRODUCED CONTRACTS (AND SUCH UNPRODUCED CONTRACTS
SHALL IMMEDIATELY CEASE TO BE CONTRACTS FOR ALL PURPOSES OF THIS AGREEMENT) IF
AND TO THE EXTENT (I) ANY SUCH UNPRODUCED CONTRACTS CONTAIN MATERIALLY DIFFERENT
OR ADVERSE TERMS AS COMPARED TO THE CONTRACTS PROVIDED TO BUYER FOR REVIEW, OR
(II) SELLER FAILS TO PRODUCE ANY SUCH UNPRODUCED CONTRACTS WITHIN 45 DAYS OF THE
DATE HEREOF. BUYER AND SELLER AGREE TO COOPERATE TO RECONCILE THEIR LISTS OF
UNPRODUCED CONTRACTS WITHIN TWO DAYS OF THE DATE HEREOF, WITH THE OBJECTIVE OF
MINIMIZING THE NUMBER OF UNPRODUCED CONTRACTS; AND
(B)
TO THE EXTENT TRANSFERABLE, ALL RIGHTS OF THE SELLER GROUP UNDER ALL
WARRANTIES, REPRESENTATIONS AND GUARANTEES MADE BY SUPPLIERS, MANUFACTURERS OR
CONTRACTORS IN CONNECTION WITH THE BUSINESS;
(IV)
IN ACCORDANCE WITH AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, ALL
PERSONNEL AND PAYROLL RECORDS OF THE AFFECTED EMPLOYEES LOCATED IN THE ROLLING
MEADOWS FACILITY OR IN THE BUSINESS REAL PROPERTY AND COPIES OF ALL SUCH RECORDS
LOCATED IN THE SELLER'S FACILITY; AND
(V)
COPIES OF ALL OTHER BOOKS, RECORDS OR CORRESPONDENCE RELATED TO THE
BUSINESS (EXCLUDING TAX RETURNS NOT RELATED EXCLUSIVELY TO THE BUSINESS).
(B)
SUCH SALE, CONVEYANCE, ASSIGNMENT, TRANSFER AND DELIVERY OF THE ASSETS
WILL BE EFFECTED BY DELIVERY BY SELLER AND/OR OTHER MEMBERS OF THE SELLER GROUP
TO BUYER OF (I) DULY EXECUTED BILLS OF SALE (EACH, A "BILL OF SALE") IN THE FORM
ATTACHED HERETO AS EXHIBIT B, (II) INSTRUMENTS OF ASSIGNMENT ASSIGNING EACH
MEMBER OF THE SELLER GROUP'S INTEREST IN AND TO THE TRANSFERRED INTELLECTUAL
PROPERTY (AS DEFINED IN SECTION 3.7(P)), INCLUDING ALL REGISTERED INTELLECTUAL
PROPERTY (AS DEFINED IN SECTION 3.7(P)) RELATING THERETO, PURSUANT TO THE FORM
OF ASSIGNMENT OF PATENT RIGHTS ATTACHED HERETO AS EXHIBIT C, FORM OF ASSIGNMENT
OF COPYRIGHTS ATTACHED HERETO AS EXHIBIT D AND FORM OF ASSIGNMENT OF TRADEMARKS
OBTAINED HERETO AS EXHIBIT E (EACH, AN "INTELLECTUAL PROPERTY ASSIGNMENT"),
(III) A COPY OF THE PATENTS AND PATENT APPLICATIONS AND THE REGISTRATIONS AND
PENDING APPLICATIONS INCLUDED IN THE TRANSFERRED INTELLECTUAL PROPERTY AND
(IV) SUCH OTHER GOOD AND SUFFICIENT INSTRUMENTS OF SALE, CONVEYANCE, TRANSFER
AND ASSIGNMENT
AS SHALL BE NECESSARY TO VEST IN BUYER GOOD AND VALID TITLE TO
THE OTHER ASSETS FREE AND CLEAR OF ALL LIENS, EXCEPT FOR PERMITTED ENCUMBRANCES
(COLLECTIVELY, THE "OTHER INSTRUMENTS").
(C)
AT THE CLOSING, BUYER WILL DELIVER TO SELLER GROUP AN INSTRUMENT OF
ASSUMPTION SUBSTANTIALLY IN THE FORM OF EXHIBIT F HERETO (THE "INSTRUMENT OF
ASSUMPTION"), WHEREBY BUYER WILL UNDERTAKE, ASSUME AND AGREE TO PERFORM, PAY AND
DISCHARGE