11.02(D).
(DDDD)
"TRADEMARKS" MEANS UNITED STATES, STATE AND NON-U.S. TRADEMARKS,
SERVICE MARKS, TRADE NAMES, DESIGNS, LOGOS, SLOGANS AND GENERAL INTANGIBLES OF
LIKE NATURE, WHETHER REGISTERED OR UNREGISTERED, AND PENDING REGISTRATIONS AND
APPLICATIONS TO REGISTER THE FOREGOING, TOGETHER WITH ALL GOODWILL OF THE
BUSINESS ASSOCIATED WITH THE FOREGOING.
SECTION 1.02
CONSTRUCTION OF CERTAIN TERMS AND PHRASES.
Unless the context of this Agreement otherwise requires: (a) words of any gender
include each other gender; (b) words using the singular or plural number also
include the plural or
**Portions of the Exhibit have been omitted and have been filed separately
pursuant to an application for confidential treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as amended.
13
singular number, respectively; (c) the terms "hereof," "herein," "hereby" and
derivative or similar words refer to this entire Agreement; (d) the terms
"Article" or "Section" refer to the specified Article or Section of this
Agreement; (e) the term "or" has, except where otherwise indicated, the
inclusive meaning represented by the phrase "and/or"; and (f) the term
"including" or "includes" means "including without limitation" or "includes
without limitation."
The Seller Disclosure Schedule, Buyer Disclosure Schedule
and Exhibits referred to herein shall be construed with and as an integral part
of this Agreement to the same extent as if they were set forth verbatim herein.
Whenever this Agreement refers to a number of days, such number shall refer to
calendar days unless Business Days are specified.
ARTICLE II.
SALE AND ASSIGNMENT OF THE PURCHASED ASSETS
SECTION 2.01
SALE AND ASSIGNMENT OF THE PURCHASED ASSETS.
(A)
SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, ON THE
CLOSING DATE, PURSUANT TO THE ASSIGNMENT AND ASSUMPTION AGREEMENT, SELLER SHALL
SELL, TRANSFER, CONVEY, ASSIGN AND DELIVER TO BUYER, FREE AND CLEAR FROM ALL
ENCUMBRANCES OTHER THAN PERMITTED ENCUMBRANCES, AND BUYER SHALL PURCHASE,
ACQUIRE AND ACCEPT FROM SELLER ALL OF SELLER'S RIGHT, TITLE AND INTEREST, AS OF
THE CLOSING, IN AND TO THE PURCHASED ASSETS.
(B)
BUYER ACKNOWLEDGES AND AGREES THAT THE EURAND AGREEMENT (I)
CONTAINS A RESTRICTION ON THE RIGHT OF SELLER TO MANUFACTURE, MARKET OR SELL THE
PRODUCT OUTSIDE OF THE TERRITORY AND (II) DOES NOT PROVIDE ANY RIGHTS TO
MANUFACTURE, MARKET, SELL, DISTRIBUTE OR OTHERWISE EXPLOIT THE PRODUCT OUTSIDE
OF THE TERRITORY.
(C)
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE
CONTRARY, (I) FROM AND AFTER THE CLOSING SELLER SHALL RETAIN ALL OF ITS RIGHT,
TITLE AND INTEREST IN AND TO THE EXCLUDED ASSETS; AND (II) SELLER MAY RETAIN AN
ARCHIVAL COPY OF ALL PRODUCT CONTRACTS, BOOKS AND RECORDS, MARKETING MATERIALS
AND OTHER DOCUMENTS OR MATERIALS INCLUDED IN THE PURCHASED ASSETS (BUT SELLER
SHALL NOT USE ANY SUCH ARCHIVAL COPY FOR ANY OTHER PURPOSES THAN AS AN ARCHIVE
AND SHALL MAINTAIN THE CONFIDENTIALITY OF SUCH MATERIALS PURSUANT TO SECTION
13.01).
Section 2.02
EXCLUDED ASSETS. Notwithstanding the provisions of
Section 2.01, the Purchased Assets shall not include the following (herein
referred to as the "Excluded Assets"):
(A)