PURCHASER
SHALL PURCHASE, ACQUIRE, ACCEPT, ASSUME AND RECEIVE FROM SELLER, FREE AND CLEAR
OF ANY LIENS (OTHER THAN PERMITTED LIENS), ALL RIGHT, TITLE AND INTEREST OF
SELLER IN, TO AND UNDER THE FOLLOWING ASSETS AND PROPERTY, REAL, PERSONAL OR
MIXED, TANGIBLE OR INTANGIBLE, OF SELLER WITH RESPECT TO THE BUSINESS (OTHER
THAN THE EXCLUDED ASSETS) (THE "TRANSFERRED ASSETS"):
(I)
ALL PATENT RIGHTS, TRADEMARK RIGHTS AND COPYRIGHT RIGHTS SET
FORTH ON SCHEDULE 1.1(A)(I) HERETO (THE "TRANSFERRED TECHNOLOGY");
(II)
ALL INVENTORY (OTHER THAN FINISHED INVENTORY) AND WORK IN PROCESS
EXISTING AS OF THE MANUFACTURING CLOSING DATE, WHICH INCLUDES ANY AND ALL GOODS,
RAW MATERIALS AND WORK IN PROCESS USED OR CONSUMED IN THE BUSINESS, TOGETHER
WITH ALL RIGHTS OF SELLER RELATING TO SUCH INVENTORY AGAINST SUPPLIERS THEREOF
(THE "WORK IN PROCESS");
(III)
[INTENTIONALLY OMITTED.];
(IV)
THE RIGHTS OF SELLER RELATED TO THE DEVELOPMENT OF THE PRODUCT,
INCLUDING ALL CLINICAL TRIALS, AND RELATED CLINICAL TRIAL DATA, WHICH RIGHTS ARE
IDENTIFIED ON SCHEDULE 1.1(A)(IV) (THE "PRODUCT DEVELOPMENT");
(V)
ALL DATA AND RECORDS RELATED TO THE OPERATION OF THE BUSINESS,
WHICH DATA AND RECORDS INCLUDE (WITHOUT LIMITATION) CLIENT AND CUSTOMER LISTS,
RESEARCH AND DEVELOPMENT REPORTS, FINANCIAL AND BILLING RECORDS (INCLUDING
ROUTING AND BILLING INFORMATION), CREATIVE MATERIALS, ADVERTISING MATERIALS,
MARKETING MATERIALS, PROMOTIONAL MATERIALS, STUDIES, REPORTS, CORRESPONDENCE AND
OTHER SIMILAR DOCUMENTS (THE "RECORDS"), WHICH RECORDS ARE IDENTIFIED ON
SCHEDULE 1.1(A)(V); PROVIDED THAT ALL SUCH DATA AND RECORDS PROVIDED PURSUANT TO
THIS SECTION 1.1(A)(V) MAY IN SELLER'S SOLE DISCRETION, HAVE REDACTED THEREFROM
ALL DATA UNRELATED TO THE BUSINESS;
(VI)
THE TANGIBLE PERSONAL PROPERTY OF SELLER USED IN OR NECESSARY FOR
THE OPERATION OF THE BUSINESS IDENTIFIED ON SCHEDULE 1.1(A)(VI);
(VII)
THE PERMITS, LICENSES, FRANCHISES, CONSENTS, AUTHORIZATIONS,
REGISTRATIONS AND OTHER APPROVALS AND OPERATING RIGHTS RELATING TO THE BUSINESS
THAT ARE IDENTIFIED ON SCHEDULE 1.1(A)(VII);
(VIII)
ALL CLAIMS OF SELLER AGAINST THIRD PARTIES RELATING TO THE
TECHNOLOGY ASSETS AS OF THE TECHNOLOGY CLOSING DATE AND THE MANUFACTURING ASSETS
AS OF THE MANUFACTURING CLOSING DATE, IN EACH CASE WHETHER CHOATE OR INCHOATE,
KNOWN OR UNKNOWN, CONTINGENT OR NONCONTINGENT;
(IX)
ALL RIGHTS OF SELLER RELATING TO DEPOSITS AND PREPAID EXPENSES,
CLAIMS FOR REFUNDS AND RIGHTS TO OFFSET IN RESPECT THEREOF RELATING TO THE
BUSINESS AND/OR THE TRANSFERRED ASSETS;
(X)
ALL RIGHTS IN AND TO THE CONTRACTS USED IN, RELATED TO OR
NECESSARY FOR THE OPERATION OF THE BUSINESS AS PRESENTLY CONDUCTED OR AS
CONTEMPLATED TO BE CONDUCTED, THAT ARE IDENTIFIED ON SCHEDULE 1.1(A)(X) (THE
"ASSUMED CONTRACTS");
(XI)
ALL OF SELLER'S GOODWILL RELATING TO THE FOREGOING ASSETS; AND
(XII)
ALL BUSINESS INTELLECTUAL PROPERTY NOT OTHERWISE SET FORTH ON
SCHEDULES 1.1(A)(I), 1.1(A)(IV), 1.1(A)(V) AND 1.1(A)(VI).
2
Schedule 1.1 - Manufacturing Assets identifies all of the Transferred Assets
that are being transferred to Purchaser at the Manufacturing Closing (the
"Manufacturing Assets").
(B)
EXCLUDED ASSETS.
EXCEPT FOR THE TRANSFERRED ASSETS, PURCHASER
SHALL NOT ACQUIRE BY VIRTUE OF THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT,
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, AND SHALL HAVE NO RIGHT,
TITLE OR INTEREST IN ANY OF THE ASSETS OF