THE TERMS OF THIS
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AGREEMENT.
SELLER AND BUYER SHALL FURNISH OR CAUSE TO BE FURNISHED TO THE
ACCOUNTING FIRM SUCH WORK PAPERS AND OTHER DOCUMENTS AND INFORMATION RELATED TO
THE DISPUTED MATTERS AS THE ACCOUNTING FIRM MAY REQUEST AND ARE REASONABLY
AVAILABLE TO SELLER, BUYER OR THEIR RESPECTIVE AGENTS.
THE ACCOUNTING FIRM
SHALL ADDRESS ONLY THOSE ITEMS IN DISPUTE AND CALCULATION-RELATED ERRORS.
JUDGMENT MAY BE ENTERED UPON THE DETERMINATION OF THE ACCOUNTING FIRM IN ANY
COURT HAVING JURISDICTION OVER THE PARTY AGAINST WHICH SUCH DETERMINATION IS TO
BE ENFORCED.
WITHIN THREE (3) BUSINESS DAYS OF THE PAYMENT STATEMENT BECOMING
FINAL AND BINDING, BUYER SHALL PAY TO SELLER THE DEFERRED CASH CONSIDERATION.
THE FEES AND EXPENSES OF THE ACCOUNTING FIRM INCURRED PURSUANT TO THIS
SECTION 2.7(B) SHALL BE BORNE EQUALLY BY BUYER AND SELLER.
2.8
CLOSING.
THE PURCHASE AND SALE (THE
"CLOSING") PROVIDED FOR IN THIS AGREEMENT WILL TAKE PLACE UPON EXECUTION AND
DELIVERY OF THIS AGREEMENT BY BOTH PARTIES.
2.9
CLOSING OBLIGATIONS.
AT THE CLOSING:
(A)
SELLER WILL DELIVER, OR CAUSE TO BE
DELIVERED, AS APPLICABLE, TO BUYER (OR THE STOCK BUYER, AS THE CASE MAY BE):
(I)
PHYSICAL POSSESSION AND/OR CONTROL OF
THE PURCHASED ASSETS IN ACCORDANCE WITH THE FOLLOWING:
(A)
ALL PURCHASED ASSETS WHICH ARE TANGIBLE
PERSONAL PROPERTY AND LOCATED AT SELLER'S FACILITY SHALL BE TURNED OVER TO THE
BUYER; AND
(B)
FOR ALL PURCHASED ASSETS LOCATED AT OR WITH A
SUPPLIER OR OUTSIDE MANUFACTURER (COLLECTIVELY, THE "OFFSITE ASSETS"), A LISTING
OF WHICH IS ATTACHED HERETO AS SCHEDULE 2.9(A)(I)(B), SELLER WILL TAKE ALL STEPS
REQUIRED TO PLACE BUYER IN CONTROL OF SUCH OFFSITE ASSETS AT CLOSING, INCLUDING
DELIVERING AT OR PRIOR TO THE CLOSING A LISTING OF ALL SUCH OFFSITE ASSETS;
(II)
A BILL OF SALE TRANSFERRING THE PURCHASED
ASSETS TO BUYER, FREE AND CLEAR OF ANY AND ALL ENCUMBRANCES WHATSOEVER IN THE
FORM OF EXHIBIT 2.9(A)(II) (THE "BILL OF SALE"), EXECUTED BY SELLER;
(III)
THE ASSIGNMENT AND ASSUMPTION AGREEMENT,
EXECUTED BY SELLER;
(IV)
AN INTELLECTUAL PROPERTY ASSIGNMENT IN THE
FORM OF EXHIBIT 2.9(A)(IV) (THE "INTELLECTUAL PROPERTY ASSIGNMENT"), EXECUTED BY
SELLER AND PARENT, AS APPLICABLE;
(V)
A DOMAIN NAME ASSIGNMENT IN THE FORM OF
EXHIBIT 2.9(A)(V) (THE "DOMAIN NAME ASSIGNMENT"), EXECUTED BY SELLER AND PARENT,
AS APPLICABLE;
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(VI)
A TRANSITION SERVICES AGREEMENT IN THE FORM OF
EXHIBIT 2.9(A)(VI) (THE "TRANSITION SERVICES AGREEMENT"), EXECUTED BY SELLER;
(VII)
COPIES OF ALL CONSENTS TO THE TRANSFER,
ASSIGNMENT OR SUBLEASE TO BUYER OF EACH PURCHASED ASSET, INCLUDING CONTRACTS AND
GOVERNMENTAL AUTHORIZATIONS THAT REQUIRE SUCH CONSENT;
(VIII)
AN ASSIGNMENT AND ASSUMPTION AGREEMENT RELATING
THE RANCHO CUCAMONGA LEASE (THE "LEASE ASSIGNMENT"), EXECUTED BY SELLER WITH
WRITTEN CONSENT OF THE LANDLORD;
(IX)
A REQUEST FOR ENTRY IN SHAREHOLDERS'
REGISTER, EXECUTED BY SELLER AND ADDRESSED TO XCEL JAPAN, THAT XCEL JAPAN EFFECT
AN ENTRY IN ITS SHAREHOLDERS' REGISTER WITH RESPECT TO THE ACQUISITION DUE TO
TRANSFER TO STOCK BUYER, IN FORM APPROVED BY BUYERS' COUNSEL PRIOR TO CLOSING;
(X)
THE RESIGNATIONS, DATED AS OF THE CLOSING
DATE, OF (A) CARMINE T. OLIVA