TO BUYER (OR ONE OR MORE DIRECT OR INDIRECT WHOLLY-OWNED SUBSIDIARIES OF
BUYER GUARANTOR AS BUYER MAY DESIGNATE), GOOD AND VALID TITLE TO, AND ALL
RIGHTS, TITLE AND INTERESTS OF SELLER (OR, WITH RESPECT TO THE ARCO INTELLECTUAL
PROPERTY OWNED BY ARCOTRONICS, ALL RIGHTS, TITLE AND INTERESTS OF ARCOTRONICS)
IN AND TO THE FOLLOWING PROPERTY, FREE AND CLEAR OF ALL LIENS, CHARGES, PLEDGES,
SECURITY INTERESTS, ENCUMBRANCES, RESTRICTIONS AND CLAIMS OF ANY NATURE
WHATSOEVER OTHER THAN PERMITTED LIENS (COLLECTIVELY, THE "TRANSFERRED ASSETS"):
(I)
ALL OF SELLER'S RIGHTS WITH RESPECT TO
THE CUSTOMER ORDERS OF INVENTORY SET FORTH ON SCHEDULE 1.01(A)(I);
(II)
THE INVENTORY;
(III)
THE INTELLECTUAL PROPERTY LISTED ON SCHEDULE
1.01(A)(III) AND THE INTELLECTUAL PROPERTY, TO THE EXTENT SUCH EXISTS, REFLECTED
IN THE DOCUMENTS LISTED ON SCHEDULE A (THE "TRANSFERRED CORE INTELLECTUAL
PROPERTY");
(IV)
THE ARCO INTELLECTUAL PROPERTY AND THE
INTELLECTUAL PROPERTY, TO THE EXTENT SUCH EXISTS, REFLECTED IN THE DOCUMENTS
LISTED ON SCHEDULE B (TOGETHER, WITH THE TRANSFERRED CORE INTELLECTUAL PROPERTY,
THE "TRANSFERRED INTELLECTUAL PROPERTY");
(V)
THE TANGIBLE PERSONAL PROPERTY;
(VI)
THE TRANSFERRED AGREEMENTS AND ALL RIGHTS OF
SELLER UNDER ANY CONFIDENTIALITY OR SIMILAR AGREEMENT ENTERED INTO WITH ANY
EMPLOYEE OF SELLER RELATING TO THE BUSINESS; AND
(VII)
ALL PART NUMBER LISTS, DESIGN DRAWINGS, DESIGN
SPECIFICATIONS, PACKAGING DESIGNS, PRODUCT ENGINEERING DESIGNS AND ENGINEERING
DOCUMENTS, WRITTEN PROCESSES, WRITTEN METHODOLOGIES, WRITTEN FORMULAE, WRITTEN
ALGORITHMS, WRITTEN TECHNICAL INFORMATION, MARKETING DATA, IMPORT MANIFESTS,
CERTIFICATES OF ORIGIN, INVOICES OF THE ASSETS LOCATED IN MATAMOROS AND CUIDAD
VICTORIA, TAMAULIPAS, MEXICO, BUSINESS AND FINANCIAL RECORDS, FILES, BOOKS AND
RECORDS, AND THE DOCUMENTS LISTED ON SCHEDULE A AND SCHEDULE B, IN EACH CASE,
SPECIFICALLY RELATING TO THE PRODUCTS SET FORTH ON SCHEDULE 3.05(A)(I) AND
SCHEDULE 3.05(A)(II) OR THE BUSINESS AND ANY RECORDS LISTED ON SCHEDULE
1.01(A)(VII).
2
(B)
NOTWITHSTANDING ANYTHING CONTAINED IN THIS
AGREEMENT TO THE CONTRARY, THE FOLLOWING RIGHTS, PROPERTIES AND ASSETS OF SELLER
(THE "EXCLUDED ASSETS") SHALL NOT BE INCLUDED IN THE TRANSFERRED ASSETS:
(I)
ALL RIGHTS OF SELLER UNDER THIS
AGREEMENT AND THE ANCILLARY AGREEMENTS AND THE INSTRUMENTS AND AGREEMENTS
DELIVERED TO SELLER BY BUYER PURSUANT TO THIS AGREEMENT;
(II)
RIGHTS WITH RESPECT TO AGREEMENTS OTHER
THAN TRANSFERRED AGREEMENTS;
(III)
CASH AND CASH EQUIVALENTS, BANK ACCOUNTS,
DEPOSITS AND OTHER FINANCIAL ASSETS;
(IV)
EXCEPT AS OTHERWISE SET FORTH IN THE TRADEMARK
LICENSE AGREEMENT, THE NAMES "KEMET," "ARCOTRONICS" OR ANY LIKE OR SIMILAR NAME;
(V)
SELLER'S TAX RETURNS AND FINANCIAL
STATEMENTS;
(VI)
ANY BENEFIT, CLAIM OR RECEIVABLE OF SELLER FOR
FEDERAL, STATE OR LOCAL INCOME TAXES, REFUNDS OR ANY OTHER RECEIVABLES WHETHER
ACCRUED OR NOT;
(VII)
POLICIES OF INSURANCE AND ANY RIGHTS OR PROCEEDS
ARISING OUT OF SUCH POLICIES;
(VIII)
EXISTING LAWSUITS IN WHICH SELLER IS A PLAINTIFF
OR DEFENDANT;
(IX)
ANY PENSION PLAN ASSETS OR OTHER EMPLOYEE
BENEFIT PLANS OF SELLER;
(X)
ANY INVESTMENTS AND PREPAID ASSETS (OTHER
THAN PACKAGING DESIGN COSTS);
(XI)
THE RECEIVABLES;
(XII)
ADMINISTRATIVE AND ACCOUNTING SYSTEMS,
PROVIDED, HOWEVER, THAT THE INFORMATION RELATING TO THE BUSINESS STORED ON SUCH
SYSTEMS SHALL BE INCLUDED IN THE TRANSFERRED ASSETS TO THE EXTENT PROVIDED UNDER