IP RIGHTS, ALL BUSINESS AND
FINANCIAL RECORDS, FILES, BOOKS AND DOCUMENTS (WHETHER IN HARD COPY OR COMPUTER
FORMAT), IN EACH CASE IN THE POSSESSION OF OR WITHIN THE CONTROL OF THE ASSET
SELLING CORPORATIONS, ONLY TO THE EXTENT RELATING EXCLUSIVELY TO THE CONVEYED
ASSETS; PROVIDED, HOWEVER, THAT THE ASSET SELLING CORPORATIONS MAY REDACT ANY
INFORMATION NOT EXCLUSIVELY RELATED TO THE CONVEYED ASSETS.
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT OR IN ANY OTHER AGREEMENT DESCRIBED HEREIN, ALL RISK OF LOSS OR DAMAGE
WITH RESPECT TO THE CONVEYED ASSETS SHALL PASS TO PURCHASER AND PURCHASER'S
AFFILIATES UPON THE CLOSING, AND PARENT AND THE ASSET SELLING CORPORATIONS SHALL
NOT BE LIABLE FOR ANY LOSS OR INJURY TO THE CONVEYED ASSETS THEREAFTER, EXCEPT
AS EXPLICITLY PROVIDED IN ARTICLE 6 HEREOF.
PURCHASER SHALL, ON A DATE MUTUALLY
AGREED TO BY PURCHASER AND PARENT, AND IN ANY EVENT WITHIN THIRTY (30) DAYS
FOLLOWING THE CLOSING, RETRIEVE ANY TANGIBLE CONVEYED ASSETS FROM PARENT'S
FACILITY LOCATED AT 10700 BREN ROAD WEST, MINNETONKA, MN.
PARENT SHALL BE
PERMITTED TO RETAIN A COPY OF ALL TANGIBLE CONVEYED ASSETS FOR EVIDENTIARY
PURPOSES.
(C)
PARENT SHALL CONTINUE TO PAY AND CAUSE TO BE PAID, AND PERFORM AND
DISCHARGE WHEN DUE OR CAUSE TO BE PERFORMED AND DISCHARGED WHEN DUE, ALL
LIABILITIES OF PARENT AND THE ASSET SELLING CORPORATIONS TO THE EXTENT RELATING
TO OR ARISING FROM THE CONVEYED ASSETS, ARISING PRIOR TO THE CLOSING AND WHETHER
ACCRUED OR FIXED, KNOWN OR UNKNOWN, ABSOLUTE OR CONTINGENT, MATURED OR UNMATURED
OR DETERMINED OR DETERMINABLE AS OF THE CLOSING; PROVIDED HOWEVER THAT PURCHASER
(AND NOT THE ASSET SELLING CORPORATIONS) HEREBY ASSUMES AND AGREES TO PAY AND BE
RESPONSIBLE, EXCEPT AS EXPLICITLY PROVIDED OTHERWISE IN ARTICLE 6 HEREOF, FOR
(I) ALL LAWSUITS OR OTHER PROCEEDINGS ARISING AFTER THE CLOSING, SOLELY TO THE
EXTENT RESULTING EXCLUSIVELY FROM THE USE OR OWNERSHIP OF THE CONVEYED ASSETS ON
OR AFTER THE CLOSING, AND (II) ALL LIABILITIES ARISING FROM THE
7
DEVELOPMENT, MANUFACTURE, DISTRIBUTION OR SALE OF ANY PRODUCT BY OR ON BEHALF OF
PURCHASER, INCLUDING WARRANTY OBLIGATIONS (THE "ASSUMED LIABILITIES").
(D)
NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT OR ANY OTHER
WRITING TO THE CONTRARY, OTHER THAN THE ASSUMED LIABILITIES, PURCHASER IS NOT
ASSUMING ANY LIABILITIES OF THE ASSET SELLING CORPORATIONS, AND PARENT AND/OR
THE OTHER APPLICABLE ASSET SELLING CORPORATIONS SHALL BE RESPONSIBLE FOR THE
SATISFACTION OR DISCHARGE OF SUCH LIABILITIES, INCLUDING THE FOLLOWING
(COLLECTIVELY, THE "EXCLUDED LIABILITIES"):
(I) LIABILITIES RESULTING FROM
INDEBTEDNESS FOR BORROWED MONEY; (II) LIABILITIES FOR WHICH THE ASSET SELLING
CORPORATIONS EXPRESSLY HAVE RESPONSIBILITY PURSUANT TO THE TERMS OF THIS
AGREEMENT; (III) LIABILITIES ASSOCIATED WITH THE EXCLUDED ASSETS;
(IV) INTERCOMPANY LIABILITIES; (V) EXCEPT FOR ANY TAXES SPECIFICALLY ALLOCATED
TO PURCHASER PURSUANT TO SECTIONS 5.5(A) AND 5.5(B), ANY LIABILITY FOR TAXES OF
THE ASSET SELLING CORPORATIONS, OR OTHERWISE IMPOSED ON THE CONVEYED ASSETS WITH
RESPECT TO ANY PRE-CLOSING TAXABLE PERIOD, INCLUDING ANY LIABILITY OF THE ASSET
SELLING CORPORATIONS FOR THE TAXES OF ANY OTHER PERSON UNDER TREASURY REGULATION
SECTION 1.1502-6 (OR ANY SIMILAR