that all such material shall be held in confidence in
accordance with Section 5.8.
Upon the transfer, and not prior thereto, of
(i) the PMA Application and the related Product Records pursuant to Section 4.8
and (ii) the RESILIENT IDE and the related Product Records pursuant to
Section 4.9, the PMA Application, RESLIENT IDE and the Product Records related
to each shall be deemed Transferred Assets.
(B)
EXCLUDED ASSETS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, BUYERS SHALL NOT ACQUIRE ANY OF SELLERS' AND THEIR AFFILIATES'
RIGHT, TITLE OR INTEREST IN AND TO ANY ASSET, PROPERTY, RIGHT, GOODWILL OR
CLAIM, EXCEPT FOR THE TRANSFERRED ASSETS.
THE ASSETS, PROPERTIES, RIGHTS,
GOODWILL AND CLAIMS OF SELLERS AND THEIR AFFILIATES THAT SHALL NOT BE
TRANSFERRED HEREUNDER ARE REFERRED TO HEREIN AS THE "EXCLUDED ASSETS", AND,
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SHALL INCLUDE THE
FOLLOWING:
(I)
ALL INVENTORIES OF RAW MATERIALS AND WORK-IN-PROCESS, AS WELL AS
OTHER TANGIBLE PERSONAL PROPERTY AND EQUIPMENT SET FORTH ON SCHEDULE 1.1(B)(I)
(II)
ALL INTELLECTUAL PROPERTY SET FORTH ON SCHEDULE 1.1(B)(II);
(III)
ANY REAL PROPERTY, WHETHER OWNED OR LEASED (TOGETHER WITH ALL
EASEMENTS, LICENSES, INTERESTS AND ALL OF THE RIGHTS ARISING OUT OF THE
OWNERSHIP THEREOF OR APPURTENANT THERETO AND TOGETHER WITH ALL BUILDINGS,
STRUCTURES, FACILITIES, FIXTURES AND OTHER IMPROVEMENTS THEREON);
(IV)
(A) ALL TRADE ACCOUNTS RECEIVABLE AND OTHER RIGHTS TO PAYMENT FROM
CUSTOMERS OF THE BUSINESS AND THE FULL BENEFIT OF ALL SECURITY FOR SUCH ACCOUNTS
OR RIGHTS TO PAYMENT, INCLUDING ALL TRADE ACCOUNTS RECEIVABLE REPRESENTING
AMOUNTS RECEIVABLE IN RESPECT OF GOODS OR PRODUCTS (INCLUDING THE PRODUCTS)
SHIPPED OR SOLD OR SERVICES RENDERED TO CUSTOMERS OF THE BUSINESS ON OR PRIOR TO
THE CLOSING DATE, (B) ALL OTHER ACCOUNTS OR NOTES RECEIVABLE OF THE BUSINESS AND
THE FULL BENEFIT OF ALL SECURITY FOR SUCH ACCOUNTS OR NOTES, IN EACH CASE, AS OF
THE CLOSING DATE, AND (C) ANY CLAIM, REMEDY OR OTHER RIGHT RELATED TO ANY OF THE
FOREGOING, IN EACH CASE, AS OF THE CLOSING DATE;
(V)
OTHER THAN THE TRANSFERRED ASSETS LISTED IN SCHEDULE 1.1(A)(III),
SELLERS' INFORMATION SYSTEMS, INCLUDING HARDWARE AND SOFTWARE;
(VI)
THE CASH AND CASH EQUIVALENTS, BANK ACCOUNTS AND OTHER DEPOSITORY
ACCOUNTS OF SELLERS;
5
(VII)
ALL INSURANCE POLICIES HELD BY ANY SELLER OR ITS AFFILIATES AND
ANY REFUNDS IN CONNECTION WITH, AND CLAIMS MADE AGAINST, SUCH POLICIES, AND ALL
CLAIMS, RIGHTS AND CAUSES OF ACTION AGAINST ANY THIRD PARTY THAT RELATE TO THE
BUSINESS OR ANY TRANSFERRED ASSETS, EXCLUDED ASSETS OR EXCLUDED LIABILITIES (AS
DEFINED BELOW);
(VIII)
ANY TAX REFUNDS, OPERATING LOSSES OR CREDITS OF SELLERS; PROVIDED
THAT ANY TAX REFUNDS OR CREDITS ATTRIBUTABLE TO THE BUSINESS OR THE TRANSFERRED
ASSETS THAT RELATE TO ANY TAXABLE PERIOD OR PORTION THEREOF, BEGINNING AFTER THE
CLOSING DATE, SHALL NOT CONSTITUTE EXCLUDED ASSETS;
(IX)
ALL RIGHTS IN CONNECTION WITH, AND ASSETS HELD WITH RESPECT TO,
ANY "EMPLOYEE PENSION BENEFIT PLANS" AS DEFINED IN THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR ANY "EMPLOYEE WELFARE
BENEFIT PLANS" AS DEFINED IN