WORDS "INCLUDE" AND "INCLUDING,"
AND VARIATIONS THEREOF, WILL NOT BE DEEMED TO BE TERMS OF LIMITATION, BUT RATHER
WILL BE DEEMED TO BE FOLLOWED BY THE WORDS "WITHOUT LIMITATION."
(C)
EXCEPT AS OTHERWISE INDICATED, ALL REFERENCES IN THIS AGREEMENT TO
"SECTIONS" AND "EXHIBITS" ARE INTENDED TO REFER TO SECTIONS AND EXHIBITS TO THIS
AGREEMENT.
(D)
AS USED IN THIS AGREEMENT, THE TERMS "HEREOF," "HEREUNDER,"
"HEREIN" AND WORDS OF SIMILAR IMPORT WILL REFER TO THIS AGREEMENT AS A WHOLE AND
NOT TO ANY PARTICULAR PROVISION OF THIS AGREEMENT.
(E)
EACH PARTY HERETO HAS PARTICIPATED IN THE DRAFTING OF THIS
AGREEMENT, WHICH EACH PARTY ACKNOWLEDGES IS THE RESULT OF EXTENSIVE NEGOTIATIONS
BETWEEN THE PARTIES.
CONSEQUENTLY, THIS AGREEMENT WILL BE INTERPRETED WITHOUT
REFERENCE TO ANY RULE OR PRECEPT OF LAW THAT STATES THAT ANY AMBIGUITY IN A
DOCUMENT BE CONSTRUED AGAINST THE DRAFTER.
ARTICLE II
PURCHASE AND SALE OF ASSETS AND ASSUMPTION
OF LIABILITIES
Section 2.1
Purchase of Assets and Assumption of Liabilities.
On the
terms and subject to the conditions set forth in this Agreement, at the Closing,
the Buyer will purchase from the Seller, and the Seller will sell, transfer,
assign, convey and deliver to the Buyer, the Purchased Assets.
Section 2.2
Purchased Assets.
The "Purchased Assets" are all of the
right, title and interest, as the same may exist on the Closing Date, that the
Seller possesses and has the right to transfer in and to the following:
(A)
INTELLECTUAL AND PROPRIETARY PROPERTY OF THE SELLER WHICH IS
OWNED, USED OR HELD FOR USE (OTHER THAN THE EXCLUDED ASSETS), BY THE SELLER AS
IT EXISTS IN ANY JURISDICTION (THE "INTELLECTUAL PROPERTY"), INCLUDING, WITHOUT
LIMITATION, THE FOLLOWING:
(I)
UNITED STATES AND FOREIGN PATENTS, PATENT APPLICATIONS AND OTHER
PATENT RIGHTS (INCLUDING, WITHOUT LIMITATION, ANY DIVISIONS, CONTINUATIONS,
CONTINUATIONS-IN-PART, RENEWALS, SUBSTITUTIONS OR REISSUES THEREOF, WHETHER OR
NOT PATENTS ARE ISSUED ON ANY SUCH APPLICATIONS AND WHETHER OR NOT ANY SUCH
APPLICATIONS ARE AMENDED, MODIFIED, WITHDRAWN OR RE-FILLED), AND IMPROVEMENTS
THERETO, INCLUDING THE PATENTS AND PATENT APPLICATIONS SET FORTH ON SCHEDULE
2.2(A)(I);
4
(II)
UNITED STATES, STATE AND FOREIGN TRADEMARKS, SERVICE MARKS, TRADE
DRESS, TRADE NAMES, BRAND NAMES, INTERNET DOMAIN NAMES, WEBSITES OR WEB PAGES,
DESIGNS, LOGOS, AND CORPORATE NAMES (INCLUDING, IN EACH CASE, THE GOODWILL
ASSOCIATED THEREWITH), WHETHER REGISTERED OR UNREGISTERED, AND ALL REGISTRATIONS
AND APPLICATIONS OR REGISTRATION THEREOF, INCLUDING THE TRADEMARKS AND TRADEMARK
REGISTRATIONS SET FORTH ON SCHEDULE 2.2(A)(II);
(III)
UNITED STATES AND FOREIGN COPYRIGHTS, WHETHER REGISTERED OR
UNREGISTERED, INCLUDING ALL RENEWALS AND EXTENSIONS THEREOF, COPYRIGHT
REGISTRATIONS AND APPLICATIONS FOR REGISTRATION THEREOF, INCLUDING THE
COPYRIGHTS AND COPYRIGHT REGISTRATIONS SET FORTH ON SCHEDULE 2.2(A)(III);
(IV)
COMPUTER SOFTWARE PROGRAMS AND SOFTWARE SYSTEMS, INCLUDING,
WITHOUT LIMITATION, ALL DATABASES, COMPILATIONS, TOOL SETS, COMPILERS, RELATED
SOURCE CODES, OBJECT CODE, AND ANY OTHER CODE IN HUMAN READABLE FORM, AND ALL
DOCUMENTATION RELATED THERETO;
(V)
TRADE SECRETS, INCLUDING, WITHOUT LIMITATION, ALL CONFIDENTIAL
DESIGNS, RESEARCH AND DEVELOPMENT INFORMATION, TECHNICAL INFORMATION,
SPECIFICATIONS, OPERATING AND MAINTENANCE MANUALS, METHODS, TECHNOLOGY,
ENGINEERING DATA AND DRAWINGS, IDEAS, CONCEPTS, KNOW-HOW, PROCESSES, PROPRIETARY
DATA, FORMULAE, ALGORITHMS, CUSTOMER