"Distribution Agreement"), (iii) a sublease for the
Subleased Property (the "Sublease"), (iv) assignments of trademarks by means of
a trademark assignment agreement (the "Trademark Assignment"), and
(v) assignment of a domain name by means of a domain name assignment (the
"Domain Name Assignment"), each of which shall become effective upon the
Closing; and
WHEREAS, in connection with the transactions contemplated by this Agreement, the
Sellers have obtained consents, assignments, approvals and waivers from certain
of their customers and vendors, copies of which are set forth on Section 1 of
the Disclosure Schedule (the "Consents").
NOW, THEREFORE, in consideration of the covenants, promises, representations and
warranties set forth herein, and for other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged by the parties),
intending to be legally bound hereby, the parties hereby agree as follows:
ARTICLE I.
PURCHASE & SALE OF PURCHASED ASSETS
SECTION 1.1
PURCHASED ASSETS.
SUBJECT TO
THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING SECTION 1.2(B), AND IN
RELIANCE UPON THE REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
CONTAINED HEREIN, AT THE CLOSING, THE SELLERS SHALL SELL, CONVEY, TRANSFER,
ASSIGN AND DELIVER TO ACQUIRER, AND ACQUIRER SHALL PURCHASE AND ACQUIRE FROM THE
SELLERS, FREE AND CLEAR OF ALL LIENS (OTHER THAN PERMITTED LIENS), ALL OF THE
SELLERS' RIGHT, TITLE AND INTEREST IN AND TO ALL OF THE ASSETS WHICH THE SELLERS
OWN OR IN WHICH EITHER OF THE SELLERS HAS ANY RIGHT, TITLE OR INTEREST RELATING
TO THE BUSINESS, INCLUDING, BUT NOT LIMITED TO, THE ASSETS LISTED BELOW EXCEPT
AS SET FORTH IN SECTIONS 1.2 AND 1.3 (COLLECTIVELY, THE "PURCHASED ASSETS"):
(A)
ALL ACCOUNTS RECEIVABLE, NOTES RECEIVABLE
AND OTHER RECEIVABLES, INCLUDING, BUT NOT LIMITED TO, THOSE RECEIVABLES SET
FORTH ON SECTION 1.1(A) OF THE DISCLOSURE SCHEDULE;
(B)
ALL INVENTORIES AND WORKS-IN-PROGRESS, AND
ALL RIGHTS TO COLLECT FROM CUSTOMERS (AND TO RETAIN) ALL FEES AND OTHER AMOUNTS
PAYABLE, OR THAT MAY BECOME PAYABLE, TO THE SELLERS WITH RESPECT TO SERVICES
PERFORMED BY THE SELLERS ON OR PRIOR TO THE CLOSING DATE INCLUDING, BUT NOT
LIMITED TO, THOSE INVENTORIES, WORKS-IN-PROGRESS, RIGHTS, AND FEES SET FORTH ON
SECTION 1.1(B) OF THE DISCLOSURE SCHEDULE;
(C)
ALL EQUIPMENT, COMPUTERS, MATERIALS,
PROTOTYPES, TOOLS, SUPPLIES, VEHICLES, FURNITURE, FIXTURES, IMPROVEMENTS AND
OTHER TANGIBLE ASSETS RELATED TO THE BUSINESS, EXCEPT AS SET FORTH ON
SECTION 1.1(C) OF THE DISCLOSURE SCHEDULE;
(D)
ALL INTELLECTUAL PROPERTY USED BY SELLERS IN
THE OPERATION OF THE BUSINESS;
(E)
ALL ADVERTISING AND PROMOTIONAL MATERIALS;
(F)
ALL RIGHT, TITLE AND INTEREST IN, TO AND
UNDER THE CONTRACTS SET FORTH ON SECTION 1.1(F) OF THE DISCLOSURE SCHEDULE;
(G)
TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ALL PERMITS NECESSARY FOR THE CONDUCT OF THE BUSINESS;
(H)
TO THE EXTENT PERMITTED BY APPLICABLE LAW,
AND SUBJECT TO SECTION 9.4, ALL BOOKS, RECORDS, FILES AND DATA;
(I)
THE RIGHTS UNDER SELLERS' INSURANCE
POLICIES WITH RESPECT TO THE ACCOUNTS RECEIVABLE AS OF THE CLOSING THAT ARE NOT
EXCLUDED BY SELLERS PURSUANT TO SECTION 1.2(B) (THE "TRANSFERRED INSURANCE
POLICIES");
(J)
ALL GOODWILL INCIDENT TO THE