in writing by the Purchaser prior to the Closing and
(ii) those commercial off-the-shelf software licenses to be mutually agreed upon
by the Seller and the Purchaser.
SECTION 1.02.
Definitions.
The following terms have the meanings set forth in
the Sections set forth below:
Definition
Location
"3R"
Preamble
"Agreement"
Preamble
"Allocation"
2.03(c)
"Ancillary Agreements"
2.05(a)
"Assignment of Owned Intellectual Property
2.05(a)
"Assumed Liabilities"
2.02
"Assumption Agreement"
2.05(a)
"Audited Financial Statements"
3.04(a)
"Bill of Sale"
2.05(a)
"BTI"
Recitals
"BTI Agreement"
Recitals
"BTI Assets"
Recitals
"Business"
Recitals
"Closing"
2.04
"Closing Date"
2.04(b)
"Contingent Payment Condition"
2.03(b)
"Creditor Consent"
Recitals
"Distributorship Agreement"
5.11
"Dr. Jang"
Preamble
"Financial Statements"
3.04(a)
"FTL"
3.26
"Holdback Amount"
2.03(a)(iii)
"Insolvency Event"
3.22
"Insolvency Statute"
3.22
"Intellectual Property License Agreement"
Recitals
"Key Employees"
6.01(a)
7
Definition
Location
"KFTC"
3.26
"Loss"
9.02
"Manufacturing Agreement"
5.10
"Material Contracts"
3.11(a)
"Multiemployer Plan"
3.15
"Multiple Employer Plan"
3.15
"Outstanding Claims"
2.07(b)(ii)
"Principal Creditors"
Recitals
"Purchase Price"
2.03(a)
"Purchased Assets"
2.01(a)
"Purchaser"
Preamble
"Purchaser Indemnified Party"
9.02
"Reserve Amount"
2.07(b)(ii)
"Restricted Period"
5.08(a)
"Seller"
Preamble
"Seller Indemnified Party"
9.03
"Tangible Personal Property"
3.13(a)
"Third Party Claim"
9.04(b)
"Training Agreement"
5.09
"Transition Services Agreement"
5.14
"Unaudited Balance Sheet"
3.04(a)
ARTICLE II
PURCHASE AND SALE
SECTION 2.01.
Purchase and Sale of Purchased Assets.
(a)
Upon the terms and
subject to the conditions of this Agreement, at the Closing, the Seller shall
sell, assign, transfer, convey and deliver, or cause to be sold, assigned,
transferred, conveyed and delivered, to the Purchaser (or to one or more
Affiliates of the Purchaser designated by the Purchaser at or prior to Closing),
and the Purchaser shall (or shall cause one or more Affiliates of the Purchaser
designated by the Purchaser at or prior to the Closing to) purchase from the
Seller and, with respect to the BTI Assets, BTI the following assets and
properties of the Seller or BTI (the "Purchased Assets"):
(I)
ALL OF THE SELLER'S RIGHT, TITLE AND INTEREST IN, TO AND UNDER
THE OWNED INTELLECTUAL PROPERTY (INCLUDING PATENTS CLAIMING ANY TRADE SECRETS
EXISTING AS OF THE CLOSING DATE) AND THE TRANSFERRED IP AGREEMENTS, COPIES AND
TANGIBLE EMBODIMENTS THEREOF IN WHATEVER FORM OR MEDIUM, AND ALL RIGHTS TO SUE
AND RECOVER DAMAGES FOR PAST, PRESENT AND FUTURE INFRINGEMENT, DILUTION,
MISAPPROPRIATION, VIOLATION, UNLAWFUL IMITATION OR BREACH THEREOF;
8
(II)
ALL CLAIMS, CAUSES OF ACTION, CHOICES IN ACTION, RIGHTS OF
RECOVERY AND RIGHTS OF SETOFF OF ANY KIND (INCLUDING RIGHTS TO INSURANCE
PROCEEDS AND RIGHTS UNDER AND PURSUANT TO ALL WARRANTIES, REPRESENTATIONS AND
GUARANTEES MADE BY SUPPLIERS OF PRODUCTS, MATERIALS, OR EQUIPMENT, OR COMPONENTS
THEREOF), RELATED TO THE OWNED INTELLECTUAL PROPERTY AND THE TRANSFERRED IP
AGREEMENTS;
(III)
ALL LITERATURE AND GRAPHICAL OR WRITTEN EXPRESSIONS, IN WHATEVER
FORM, RELATED TO THE OWNED INTELLECTUAL PROPERTY, INCLUDING TECHNICAL
DOCUMENTATION, USER MANUALS, AND DEVELOPMENT DOCUMENTATION;
(IV)
SUCH EQUIPMENT, MACHINERY, FURNITURE, FIXTURES AND OTHER TANGIBLE
PERSONAL PROPERTY OWNED BY THE SELLER OR BTI TO BE SET FORTH IN WRITING BY THE
PURCHASER ON OR PRIOR TO THE CLOSING; PROVIDED, HOWEVER, THAT THE SELLER