ANY FACILITY LOCATION PRIOR TO THE CLOSING DATE OR
OTHERWISE OCCURRING PRIOR TO THE CLOSING DATE IN CONNECTION WITH OR TO BENEFIT
THE BUSINESS ("PRE-CLOSING HAZARDOUS MATERIALS ACTIVITIES"); (IV) THE EXPOSURE
OF ANY PERSON TO PRE-EXISTING CONTAMINATION OR TO HAZARDOUS MATERIALS IN THE
COURSE OF OR AS A CONSEQUENCE OF ANY PRE-CLOSING HAZARDOUS MATERIALS ACTIVITIES,
WITHOUT REGARD TO WHETHER ANY HEALTH EFFECT OF THE EXPOSURE HAS BEEN MANIFESTED
AS OF THE CLOSING DATE; (V) THE VIOLATION OF ANY ENVIRONMENTAL LAWS BY THE
COMPANY OR ITS AGENTS, EMPLOYEES, PREDECESSORS IN INTEREST, CONTRACTORS,
INVITEES OR LICENSEES PRIOR TO THE CLOSING DATE OR IN CONNECTION WITH ANY
PRE-CLOSING HAZARDOUS MATERIALS ACTIVITIES PRIOR TO THE CLOSING DATE (OTHER THAN
VIOLATIONS OF ENVIRONMENTAL LAWS THAT ARISE
13
FROM CHANGES IN ENVIRONMENTAL LAWS AFTER THE CLOSING DATE); AND (VI) ANY ACTIONS
OR PROCEEDINGS BROUGHT OR THREATENED BY ANY THIRD PARTY WITH RESPECT TO ANY OF
THE FOREGOING.
(FFFF)
"SUPPLIER PURCHASE ORDER" MEANS ANY PURCHASE ORDER TO PURCHASE
MATERIAL, COMPONENTS AND OTHER SUPPLIES TO BE ACQUIRED BY SELLERS.
(GGGG)
INTENTIONALLY LEFT BLANK.
(HHHH)
"TRANSACTION" MEANS THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
AND THE ANCILLARY AGREEMENTS.
(IIII)
"TRANSITION SERVICES AGREEMENT" MEANS THAT CERTAIN TRANSITION
SERVICES AGREEMENT SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT D TO BE
ENTERED INTO BY BUYER AND SELLERS AT THE CLOSING WITH RESPECT TO THE PROVISION
OF CERTAIN TRANSITION SERVICES WITH RESPECT TO THE BUSINESS FOLLOWING THE
CLOSING DATE.
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1
Purchase and Sale of Assets.
Upon the terms and subject to the
conditions set forth herein, at the Closing (as defined in Section 2.3 hereof),
Buyer (or a wholly-owned subsidiary of Buyer as designated by Buyer) shall
purchase from Sellers, and Sellers shall irrevocably sell, convey, transfer,
assign and deliver to Buyer (or a wholly-owned subsidiary of Buyer as designated
by Buyer), the Purchased Assets (as defined in Section 2.1(a) hereof) free and
clear of all Liens (other than Permitted Liens).
(A)
DEFINITION OF PURCHASED ASSETS.
FOR ALL PURPOSES OF AND UNDER
THIS AGREEMENT, THE TERM "PURCHASED ASSETS" SHALL MEAN, REFER TO AND INCLUDE ALL
OF SELLERS' RIGHT, TITLE AND INTEREST IN AND TO ALL OF THE FOLLOWING TANGIBLE
AND INTANGIBLE ASSETS, PROPERTIES AND RIGHTS TO THE EXTENT OWNED, USED OR HELD
FOR USE BY SELLERS AS OF THE CLOSING (BUT SPECIFICALLY EXCLUDING THE EXCLUDED
ASSETS (AS DEFINED IN SECTION 2.1(B) HEREOF)):
(I)
ALL INVENTORIES;
(II)
ALL FIXED ASSETS;
(III)
ALL EXPENSED CAPITAL ITEMS;
(IV)
ALL PREPAID EXPENSES;
(V)
ALL SECURITY DEPOSITS.
(VI)
ALL PERSONAL PROPERTY LEASES;
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(VII)
ALL SELLER RECORDS;
(VIII)
ALL RIGHTS UNDER ANY ASSIGNED CONTRACTS; AND
(IX)
ALL RIGHTS UNDER ANY ASSUMED PERMITS.
(B)
DEFINITION OF EXCLUDED ASSETS.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY SET FORTH IN THIS SECTION 2.1 OR ELSEWHERE IN THIS AGREEMENT, THE TERM
"PURCHASED ASSETS" SHALL NOT MEAN, REFER TO OR INCLUDE THE FOLLOWING
(COLLECTIVELY, THE "EXCLUDED ASSETS") TO THE EXTENT OWNED, USED OR HELD FOR USE
BY SELLERS AS OF THE CLOSING:
(I)
CASH, CASH EQUIVALENTS,