OF THE BUSINESS,
TRANSFERRED ASSETS, ASSUMED LIABILITIES AND TRANSFERRED SECOND TERRITORY
EMPLOYEES ARE FURNISHED TO BUYER;
(X)
ANY DEPOSITS AND ADVANCES, REBATES AND CREDITS OR CLAIMS OF THE
SELLER ENTITIES WITH RESPECT TO THE EXCLUDED ASSETS;
(XI)
ANY INTERCOMPANY OR INTRACOMPANY RECEIVABLES OR PAYABLES BETWEEN
THE SELLER ENTITIES AND ANY OF THEIR RESPECTIVE AFFILIATES OR AFFILIATES OF SUCH
AFFILIATES;
5
(XII)
THE MANUFACTURING FACILITY LOCATED AT #398 TIANMUSHAN ROAD,
GUDANG INDUSTRIAL PARK, IN HANGZHOU, CHINA (THE "EXISTING FACILITY"), INCLUDING
THE MANUFACTURING, TESTING AND RESEARCH AND DEVELOPMENT EQUIPMENT AND RELATED
ASSETS LOCATED THEREIN THAT ARE NOT USED PRIMARILY IN THE CONDUCT OF THE
BUSINESS;
(XIII)
EXCEPT FOR CLAIMS TO BE ASSIGNED TO BUYER PURSUANT TO SECTION
1.1(A)(X), ALL CLAIMS (INCLUDING CLAIMS FOR INFRINGEMENT OR MISAPPROPRIATION OF
ACON INTELLECTUAL PROPERTY ASSETS AND/OR ACON IN-LICENSED INTELLECTUAL PROPERTY
ASSETS OR RIGHTS RELATED THERETO INCLUDED IN THE TRANSFERRED ASSETS (AS DEFINED
HEREIN)) AND CAUSES OF ACTION OF SELLER ENTITIES AGAINST ANY OTHER PERSON,
WHETHER OR NOT SUCH CLAIMS AND CAUSES OF ACTION HAVE BEEN ASSERTED, AND ALL
RIGHTS OF INDEMNITY, WARRANTY RIGHTS, RIGHTS OF CONTRIBUTION, RIGHTS TO REFUNDS,
RIGHTS OF REIMBURSEMENT AND OTHER RIGHTS OF RECOVERY OF SELLER ENTITIES
(REGARDLESS OF WHETHER SUCH RIGHTS ARE CURRENTLY EXERCISABLE) RELATING TO THE
EXCLUDED ASSETS, THE EXCLUDED LIABILITIES OR THE BUSINESS ARISING OUT OF
CIRCUMSTANCES OCCURRING PRIOR TO THE CLOSING
(XIV)
ALL MARKS (OTHER THAN THOSE MARKS OWNED AND USED BY THE SELLER
ENTITIES IN THE BUSINESS)
(XV)
ALL RIGHTS UNDER THE TRANSACTION DOCUMENTS (AS DEFINED BELOW); AND
(XVI)
ANY ASSETS, PROPERTIES, INTERESTS AND BUSINESSES OF ANY NATURE
WHATSOEVER IN RESPECT OF, RELATED TO OR RESULTING FROM ANY BUSINESS OF THE
SELLER ENTITIES (INCLUDING WITHOUT LIMITATION THE EXCLUDED BUSINESSES) OTHER
THAN DEVELOPING, MARKETING AND/OR SELLING THE PRODUCTS IN THE TERRITORY, OF
EVERY KIND AND DESCRIPTION, TANGIBLE AND INTANGIBLE, REAL, PERSONAL OR MIXED,
WHEREVER LOCATED, AND WHETHER EXISTING AS OF THE DATE OF THIS AGREEMENT OR
ACQUIRED PRIOR TO THE CLOSING.
The Seller Entities shall provide (or make available through an electronic data
room) to the Buyer, in their entirety, copies of all Material Contracts arising
out of, related to and resulting from the Business prior to the execution of
this Agreement. Notwithstanding the foregoing, in the event the Seller Entities
fail to provide (or make available through an electronic data room) any such
Material Contract, Buyer shall have the right, exercisable in its reasonable
discretion, to designate such Material Contract as a Transferred Contract or an
Excluded Contract.
1.2
Liabilities.
(A)
BUYER SHALL ASSUME, AT THE CLOSING, THE FOLLOWING OBLIGATIONS AND
LIABILITIES (INDIVIDUALLY AN "ASSUMED LIABILITY" AND COLLECTIVELY THE "ASSUMED
LIABILITIES"): (I) THE LIABILITIES AND OBLIGATIONS OF THE SELLER ENTITIES UNDER
THE TRANSFERRED CONTRACTS AND THE ASSUMED ORDERS, BUT ONLY TO THE EXTENT SUCH
OBLIGATIONS: (A) ARE TO BE PERFORMED AFTER THE CLOSING; (B) DO NOT ARISE FROM OR
RELATE TO ANY BREACH BY THE SELLER ENTITIES OF ANY PROVISION OF ANY OF THE
TRANSFERRED CONTRACTS; AND (C) DO NOT ARISE FROM OR RELATE TO ANY EVENT,