Agreement, the Assignment Assumption
Agreement, the Bill of Sale, the Intellectual Property Assignment, the Domain
Name Assignment, the Transition Services Agreement, the Lease Assignment, and
all other agreements, documents and instruments executed and delivered or to be
executed and delivered in connection with the execution and delivery of this
Agreement and the consummation of the Contemplated Transactions.
"Transfer Taxes" shall have the meaning set forth in Section 6.2.
"WARN Act" shall have the meaning set forth in Section 3.21(b).
"XCEL Japan" shall have the meaning set forth in the recitals of this Agreement.
"XCEL Japan Balance Sheet" shall have the meaning set forth in Section 3.4(b).
"XCEL Japan Financial Statements" shall have the meaning set forth in
Section 3.4(b).
"XCEL Japan Interim Financial Statements" shall have the meaning set forth in
Section 3.4(b).
"XCEL Japan Shares" shall have the meaning set forth in the recitals of this
Agreement.
"XPS" shall have the meaning set forth in Section 7.3(a)(i).
ARTICLE II
SALE AND PURCHASE TRANSACTIONS; CLOSING
2.1
SALE AND PURCHASE OF THE DIGITRAN ASSETS.
AT THE CLOSING, SELLER AND PARENT SHALL SELL AND TRANSFER TO BUYER, AND BUYER
SHALL PURCHASE FROM SELLER AND PARENT, FREE AND CLEAR OF ALL ENCUMBRANCES, ALL
OF SELLER'S AND PARENT'S ASSETS, PROPERTIES AND BUSINESS AS A GOING CONCERN
RELATING TO THE DIGITRAN BUSINESS OF EVERY KIND, NATURE AND DESCRIPTION,
WHEREVER LOCATED AND WHETHER REAL, PERSONAL OR MIXED, TANGIBLE OR INTANGIBLE, IN
ELECTRONIC FORM OR OTHERWISE, AND WHETHER OR NOT HAVING ANY VALUE FOR ACCOUNTING
PURPOSES OR CARRIED OR REFLECTED ON OR SPECIFICALLY REFERRED TO IN ITS BOOKS OR
FINANCIAL STATEMENTS, EXCEPT THOSE ASSETS SPECIFICALLY EXCLUDED PURSUANT TO
SECTION 2.2.
THE PROPERTIES, BUSINESS, GOODWILL AND ASSETS OF SELLER AND PARENT
RELATING TO THE DIGITRAN BUSINESS TO BE SOLD AND TRANSFERRED TO BUYER HEREUNDER
(COLLECTIVELY, THE "PURCHASED ASSETS") SHALL INCLUDE THE FOLLOWING:
(A)
ALL OF SELLER'S MACHINERY, EQUIPMENT,
COMPONENTS, PARTS, TOOLING, DIES, JIGS, SPARE PARTS, SUPPLIES AND MATERIALS
RELATING TO THE DIGITRAN BUSINESS WHEREVER LOCATED, INCLUDING THE ITEMS
SPECIFICALLY SET FORTH ON SCHEDULE 2.1(A);
14
(B)
ALL OF SELLER'S INVENTORIES OF RAW
MATERIALS, WORK-IN-PROCESS, PARTS, SUBASSEMBLIES AND FINISHED GOODS RELATING TO
THE DIGITRAN BUSINESS, AND ALL PACKAGING AND ALL OTHER MATERIALS AND SUPPLIES TO
BE USED OR CONSUMED BY SELLER RELATING TO THE DIGITRAN BUSINESS IN THE
PRODUCTION OF FINISHED GOODS, WHEREVER LOCATED AND WHETHER OR NOT OBSOLETE OR
CARRIED ON SELLER'S BOOKS OF ACCOUNT, INCLUDING THE ITEMS SET FORTH ON
SCHEDULE 2.1(B);
(C)
ALL OF SELLER'S OTHER TANGIBLE PERSONAL
PROPERTY RELATING TO THE DIGITRAN BUSINESS, INCLUDING OFFICE FURNITURE, OFFICE
EQUIPMENT AND SUPPLIES, LEASEHOLD IMPROVEMENTS, VEHICLES, COMPUTERS AND ALL
RELATED EQUIPMENT, AND TELEPHONES AND ALL RELATED EQUIPMENT, INCLUDING THE ITEMS
SET FORTH ON SCHEDULE 2.1(C);
(D)
ALL OF SELLER'S ADVANCE PAYMENTS, RENTAL
DEPOSITS, PREPAID ITEMS, SURETY ACCOUNTS AND OTHER SIMILAR ASSETS, CLAIMS,
DEFERRED CHARGES, CREDITS AND CLAIMS FOR REFUND RELATING TO THE DIGITRAN
BUSINESS, INCLUDING THE ITEMS SET FORTH ON SCHEDULE 2.1(D), BUT EXCLUDING SUCH
ITEMS AS ARE ASSOCIATED PRIMARILY WITH RETAINED LIABILITIES;
(E)
ALL NOTES AND