PATENTS, COPYRIGHTS, SERVICE MARKS,
TRADEMARKS, TRADE NAMES AND DOMAIN NAMES (AND ALL REGISTRATIONS AND APPLICATIONS
THEREFOR) OWNED BY OR LICENSED TO SELLER AND USED, HELD FOR USE OR PLANNED TO BE
USED IN CONNECTION WITH PRODUCTS CURRENTLY UNDER ACTIVE DEVELOPMENT, IN EACH
CASE, BY SELLER IN THE OPERATION OF THE BUSINESS, INCLUDING THOSE LISTED OR
REQUIRED TO BE LISTED ON SCHEDULE 2.1(G), AND SUCH AS ARE REQUIRED TO MAKE THE
STATEMENT IN THE FIRST SENTENCE OF SECTION 3.9(A) TRUE (THE "LISTED INTELLECTUAL
PROPERTY"), TOGETHER WITH THE OTHER INTELLECTUAL PROPERTY;
(H)
ALL THE DATA, RECORDS, FILES, MANUALS,
BLUEPRINTS AND OTHER DOCUMENTATION OF SELLER, IN EACH CASE RELATED TO THE
PURCHASED ASSETS AND USED, HELD FOR USE OR PLANNED TO BE USED IN CONNECTION WITH
PRODUCTS CURRENTLY UNDER ACTIVE DEVELOPMENT, IN EACH CASE, BY SELLER IN THE
OPERATION OF THE BUSINESS, INCLUDING:
(I) SERVICE AND WARRANTY RECORDS;
(II) SALES PROMOTION MATERIALS, CREATIVE MATERIALS, ART WORK, PHOTOGRAPHS,
PUBLIC RELATIONS AND ADVERTISING MATERIAL, STUDIES, REPORTS, CORRESPONDENCE AND
OTHER SIMILAR DOCUMENTS AND RECORDS, WHETHER IN ELECTRONIC FORM OR OTHERWISE;
(III) ALL CLIENT, CUSTOMER AND SUPPLIER LISTS, TELEPHONE NUMBERS AND ELECTRONIC
MAIL ADDRESSES WITH RESPECT TO PAST, PRESENT OR PROSPECTIVE CLIENTS, CUSTOMERS
AND SUPPLIERS; (IV) COPIES OF ACCOUNTING AND TAX BOOKS, LEDGERS AND RECORDS AND
OTHER FINANCIAL RECORDS; (V) ALL SALES AND CREDIT RECORDS, CATALOGS AND
BROCHURES, PURCHASING RECORDS AND RECORDS RELATING TO SUPPLIERS; AND
(VI) SUBJECT TO APPLICABLE LAW, ORIGINAL PERSONNEL RECORDS OF ALL TRANSFERRED
EMPLOYEES;
(I)
ALL THE PAYMENTS (OR PRO RATA PORTIONS
THEREOF) MADE BY SELLER WITH RESPECT TO THE PURCHASED ASSETS OR THE BUSINESS
WHICH CONSTITUTE, AS OF THE CLOSING DATE, PREPAID EXPENSES IN ACCORDANCE WITH
GAAP;
(J)
ALL THE VEHICLES OWNED OR (TO THE EXTENT
ASSIGNABLE) LEASED BY SELLER OR BY AFFILIATES OF SELLER AND USED IN THE
OPERATION OF THE BUSINESS ON THE CLOSING DATE, IN EACH CASE AS LISTED ON
SCHEDULE 2.1(J);
(K)
THE GOODWILL RELATED TO THE CONDUCT OF THE
BUSINESS AND ALL RIGHTS TO CONTINUE TO USE THE PURCHASED ASSETS AS AN ONGOING
BUSINESS;
(L)
ALL ASSETS INCLUDED IN THE CALCULATION
OF CURRENT ASSETS ON THE CLOSING BALANCE SHEET; AND
(M)
ALL OTHER ASSETS, PROPERTIES, RIGHTS, CLAIMS
AND INTERESTS OF SELLER THAT ARE NOT SPECIFICALLY INCLUDED IN THE DEFINITION OF
THE TERM "EXCLUDED ASSETS" IN SECTION 2.2.
2.2
Excluded Assets.
Notwithstanding anything
to the contrary in Section 2.1, the following assets, properties, rights and
interests of Seller (collectively, the "Excluded Assets") are excluded from the
Purchased Assets and shall remain the property of Seller after the Closing:
11
(A)
CORPORATE SEALS, CERTIFICATES OF
INCORPORATION, MINUTE BOOKS, STOCK BOOKS, TAX RETURNS, ORIGINAL ACCOUNTING AND
TAX BOOKS, LEDGERS, RECORDS AND OTHER FINANCIAL RECORDS OR OTHER RECORDS
RELATING TO THE CORPORATE ORGANIZATION OF SELLER;
(B)
ALL CASH ON HAND, CASH EQUIVALENTS,
INVESTMENTS (INCLUDING STOCK, DEBT INSTRUMENTS, OPTIONS AND OTHER INSTRUMENTS
AND SECURITIES) AND BANK DEPOSITS;
(C)
ALL ACCOUNTS OR NOTES RECEIVABLE OWED TO
SELLER BY PARENT OR ANY PERSON LISTED ON SCHEDULE 1.1(A);
(D)
ALL RIGHTS OF SELLER:
(I)