PRELIMINARY ALLOCATION OF
THE PURCHASE PRICE DELIVERED HEREUNDER TO THE TRANSFERRED ASSETS, THE PARTIES'
AGREEMENTS AS CONTEMPLATED BY THIS AGREEMENT AND THE TRADEMARK LICENSE
AGREEMENT, IT BEING UNDERSTOOD THAT ONLY A NOMINAL VALUATION IS TO BE ASSIGNED
TO THE TRADEMARK LICENSE AGREEMENT.
ONCE THE PARTIES HAVE AGREED ON SUCH
ALLOCATION, EACH PARTY AGREES TO REPORT THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT FOR TAX PURPOSES IN ACCORDANCE WITH SUCH ALLOCATION.
SECTION 1.06.
ASSIGNMENT OF CONTRACTS AND RIGHTS.
(A)
SCHEDULE 1.06(A)(I) LISTS ALL WRITTEN
CONTRACTS (INCLUDING CONTRACTS THAT CONSIST ONLY OF OPEN PURCHASE ORDERS) IN
EFFECT BETWEEN SELLER AND OTHER PERSONS FOR THE PURCHASE OF WET TANTALUM
CAPACITORS BY SUCH PERSONS FROM SELLER (THE "CUSTOMER CONTRACTS") AND IDENTIFIES
THOSE CUSTOMER CONTRACTS THAT ARE BETWEEN SELLER AND A DISTRIBUTOR ("DISTRIBUTOR
CONTRACTS") AND THOSE THAT ARE BETWEEN SELLER AND PERSONS THAT ARE NOT
DISTRIBUTORS ("OTHER CUSTOMER CONTRACTS").
(B)
DISTRIBUTOR CONTRACTS SHALL NOT BE ASSIGNED
TO BUYER.
BUYER SHALL FULFILL SELLER'S OBLIGATIONS WITH RESPECT TO ANY OPEN
ORDERS UNDER DISTRIBUTOR CONTRACTS FOR WET TANTALUM CAPACITORS LISTED ON
SCHEDULE 1.01(A)(I) AND SHALL BE ENTITLED TO RECEIVE THE AMOUNT OF ANY PAYMENTS
DUE TO SELLER WITH RESPECT TO SUCH ORDERS.
AFTER FULFILLMENT OF SUCH OPEN
ORDERS, ANY FURTHER ORDERS AND SALES OF WET TANTALUM CAPACITORS GIVEN TO BUYER
BY THE RESPECTIVE DISTRIBUTORS PARTY TO THE DISTRIBUTOR CONTRACTS SHALL BE
GOVERNED BY THE TERMS OF BUYER'S AGREEMENTS WITH THE DISTRIBUTORS PARTY TO THE
DISTRIBUTOR CONTRACTS.
SELLER SHALL DIRECT ANY PAYOR OF AMOUNTS TO WHICH BUYER
IS ENTITLED TO RECEIVE PURSUANT TO THIS SECTION 1.06(B), TO PAY SUCH AMOUNTS,
NET OF ANY DISCOUNTS AND CREDITS WHICH ARE APPLICABLE TO SUCH AMOUNTS PAYABLE
UNDER THE RELEVANT DISTRIBUTOR CONTRACT, DIRECTLY TO BUYER EXCEPT WITH RESPECT
TO ANY ORDERS FOR WHICH SELLER PROVIDED THE INVOICE, PROVIDED, HOWEVER, THAT IN
ALL CASES WHERE SELLER RECEIVES ANY AMOUNTS DUE TO BUYER PURSUANT TO THIS
SECTION 1.06(B), SELLER SHALL PROMPTLY FORWARD SUCH AMOUNTS TO BUYER.
(C)
TRANSFERRED AGREEMENTS SHALL CONSIST OF
(I) OTHER CUSTOMER CONTRACTS THAT RELATE SOLELY TO THE SALE OF WET TANTALUM
CAPACITORS AND THAT ARE ASSIGNABLE BY THEIR TERMS WITHOUT CONSENT OR FOR WHICH
ALL REQUIRED CONSENTS ARE OBTAINED PRIOR TO THE CLOSING DATE AND (II) THE
PORTION OF OTHER CUSTOMER CONTRACTS RELATING TO THE SALE OF WET TANTALUM
CAPACITORS TO THE EXTENT THAT SUCH PORTION CAN BE AND IS SEVERED FROM THE
REMAINDER OF THE CONTRACT PURSUANT TO DOCUMENTATION SATISFACTORY TO SELLER AND
BUYER AND EXECUTED BY THE OTHER PARTY TO THE CONTRACT PRIOR TO THE CLOSING DATE.
SELLER SHALL PROVIDE BUYER WITH COPIES OF ALL TRANSFERRED AGREEMENTS ON OR PRIOR
TO THE CLOSING. ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY
NOTWITHSTANDING, THIS AGREEMENT SHALL NOT CONSTITUTE AN AGREEMENT OR ATTEMPTED
AGREEMENT TO TRANSFER, SUBLEASE OR ASSIGN ANY CONTRACT OR ANY CLAIM OR RIGHT
WITH RESPECT TO ANY BENEFIT ARISING THEREUNDER OR RESULTING THEREFROM, IF AN
ATTEMPTED TRANSFER, SUBLEASE OR ASSIGNMENT THEREOF, WITHOUT THE REQUIRED CONSENT
OF ANY OTHER PARTY THERETO, WOULD CONSTITUTE A BREACH THEREOF OR IN ANY WAY