GUARANTEES, REFUNDS, CAUSES OF
ACTION, RIGHTS OF RECOVERY, RIGHTS OF SET-OFF AND RIGHTS OF RECOUPMENT OF EVERY
KIND AND NATURE AND ALL EXISTING AND INCHOATE CLAIMS, RIGHTS AND REMEDIES
RELATED TO ANY OF THE FOREGOING RELATING TO THE DIGITRAN BUSINESS.
2.2
RETAINED ASSETS.
SELLER SHALL RETAIN AND
THE PURCHASED ASSETS SHALL NOT INCLUDE THE FOLLOWING ASSETS RELATING TO THE
DIGITRAN BUSINESS (COLLECTIVELY, THE "RETAINED ASSETS"):
(A)
THE CONSIDERATION TO BE DELIVERED TO SELLER
PURSUANT TO, AND ALL OTHER RIGHTS UNDER, THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS;
(B)
SELLER'S OTHER RIGHTS HEREUNDER;
(C)
SELLER'S MINUTE BOOK, STOCK RECORDS AND
SEAL;
(D)
ANY RIGHT TO RECEIVE MAIL AND OTHER
COMMUNICATIONS ADDRESSED TO SELLER RELATING TO THE RETAINED ASSETS AND RETAINED
LIABILITIES;
(E)
ALL OF SELLER'S CASH, CASH IN BANKS, CASH
EQUIVALENTS, BANK AND MUTUAL FUND ACCOUNTS AND LOCKBOXES (OTHER THAN
POST-CLOSING PAYMENTS SENT TO SUCH LOCKBOXES IN PAYMENT OF THE ACCOUNTS
RECEIVABLE);
(F)
ALL TAX RETURNS OF SELLER;
16
(G)
ALL EMAIL ADDRESSES OF SELLER AND ITS
AFFILIATES;
(H)
ALL PERSONNEL RECORDS THAT SELLER IS
REQUIRED BY LAW TO RETAIN IN ITS POSSESSION;
(I)
ALL CLAIMS FOR REFUND OF TAXES AND OTHER
GOVERNMENTAL CHARGES OF WHATEVER NATURE;
(J)
ALL RIGHTS IN CONNECTION WITH AND ASSETS
OF ANY BENEFIT PLAN;
(K)
SUBJECT TO SECTION 7.11, DIGITRAN, LTD.
(ONLY TO THE EXTENT NECESSARY TO MAINTAIN ITS CORPORATE CHARTER), AND
(L)
THE ASSETS SPECIFICALLY LISTED ON
SCHEDULE 2.2(L).
2.3
ASSUMPTION OF LIABILITIES.
BUYER SHALL
ASSUME, PAY, AND PERFORM IN ACCORDANCE WITH THEIR TERMS OR OTHERWISE SATISFY,
AFTER THE CLOSING DATE, ONLY THE FOLLOWING LIABILITIES (COLLECTIVELY, THE
"ASSUMED LIABILITIES"):
(A)
AT THE CLOSING, BUYER SHALL, PURSUANT TO AN
ASSIGNMENT AND ASSUMPTION AGREEMENT SUBSTANTIALLY IN THE FORM OF EXHIBIT 2.3
ATTACHED HERETO (THE "ASSIGNMENT AND ASSUMPTION AGREEMENT"), ASSUME AND AGREE TO
PERFORM, DEFEND, PAY OR DISCHARGE, WHEN DUE, ALL OF THE OBLIGATIONS AFTER THE
DATE OF THIS AGREEMENT ASSUMED BY BUYER PURSUANT TO THE CONTRACTS SOLD TO BUYER
UNDER SECTION 2.1, INCLUDING ANY FUTURE CHANGE IN TERMS OF SUCH CONTRACTS OF
WHICH BUYER IS INFORMED PRIOR TO THE CLOSING; PROVIDED, HOWEVER, THAT IN NO
EVENT SHALL BUYER ASSUME ANY PORTION OF THE POTENTIAL SIERRA CIRCUITS LIABILITY;
AND
(B)
AFTER THE CLOSING, BUYER SHALL PERFORM ALL
WARRANTY SERVICE RELATED TO PRODUCTS SOLD BY SELLER PRIOR TO CLOSING; PROVIDED,
HOWEVER, THAT SELLER SHALL REIMBURSE BUYER FOR ANY DIRECT LABOR, MATERIALS,
FREIGHT AND OUT-OF-POCKET COSTS AND EXPENSES INCURRED BY BUYER IN EXCESS OF
$37,500 FOR PROVIDING SUCH WARRANTY SERVICE.
2.4
RETAINED LIABILITIES.
NOTWITHSTANDING
ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY AND REGARDLESS OF WHETHER
SUCH LIABILITY IS DISCLOSED HEREIN OR ON ANY SCHEDULE OR EXHIBIT HERETO, EXCEPT
FOR THE ASSUMED LIABILITIES, BUYER WILL NOT ASSUME OR BE LIABLE FOR ANY
LIABILITIES OF SELLER OR ANY OTHER PERSON, REGARDLESS OF WHETHER RELATING TO THE
DIGITRAN BUSINESS OR THE PURCHASED ASSETS, AND IN EACH CASE, WHETHER KNOWN OR
UNKNOWN, WHETHER ASSERTED OR UNASSERTED, WHETHER ABSOLUTE OR CONTINGENT, WHETHER
ACCRUED OR UNACCRUED, WHETHER LIQUIDATED OR UNLIQUIDATED AND WHETHER DUE OR