AND ALL LIABILITIES LISTED ON
SCHEDULE 1.1(A).
(B)
"ACTIONS OR PROCEEDING" MEANS ANY ACTION, SUIT, PROCEEDING, OR
ARBITRATION.
(C)
"AFFILIATE" MEANS ANY PERSON THAT DIRECTLY OR INDIRECTLY, THROUGH
ONE OF MORE INTERMEDIARIES, CONTROLS OR IS CONTROLLED BY OR IS UNDER COMMON
CONTROL WITH THE PERSON SPECIFIED.
FOR PURPOSES OF THIS DEFINITION, CONTROL OF
A PERSON MEANS THE POWER, DIRECT OR INDIRECT, TO DIRECT OR CAUSE THE DIRECTION
OF THE MANAGEMENT AND POLICIES OF SUCH PERSON WHETHER BY VOTING POWER, CONTRACT
OR OTHERWISE AND, IN ANY EVENT AND WITHOUT LIMITATION OF THE PREVIOUS SENTENCE,
ANY PERSON OWNING FIVE PERCENT (5%) OR MORE OF THE VOTING SECURITIES OF ANOTHER
PERSON SHALL BE DEEMED TO CONTROL THAT PERSON.
(D)
"AGGREGATE SEVERANCE PAYMENT" HAS THE MEANING SET FORTH IN
SECTION 5.9.
(E)
"ANCILLARY AGREEMENTS" MEANS ALL AGREEMENTS AND INSTRUMENTS
DELIVERED PURSUANT TO THIS AGREEMENT TO CARRY OUT OBLIGATIONS HEREUNDER AND TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY.
(F)
"ASSETS" OF ANY PERSON MEANS ALL ASSETS AND PROPERTIES OF EVERY
KIND, NATURE, CHARACTER AND DESCRIPTION (WHETHER REAL, PERSONAL OR MIXED,
WHETHER TANGIBLE OR INTANGIBLE, WHETHER ABSOLUTE, ACCRUED, CONTINGENT, FIXED OR
OTHERWISE AND WHEREVER SITUATED), INCLUDING THE GOODWILL RELATED THERETO,
OPERATED, OWNED OR LEASED BY SUCH PERSON, INCLUDING WITHOUT LIMITATION, CHATTEL
PAPER, DOCUMENTS, INSTRUMENTS, REAL ESTATE, EQUIPMENT, INVENTORY AND GOODS.
(G)
"ASSIGNED CONTRACTS" MEANS ANY CONTRACTS, INDENTURES, ORDERS,
MORTGAGES, INSTRUMENTS, LIENS, GUARANTEES, PURCHASES OR OTHER AGREEMENTS OF
SELLERS SET FORTH ON SCHEDULE 1.1(G).
(H)
"ASSUMED LIABILITIES" HAS THE MEANING SET FORTH IN SECTION 2.2(A).
(I)
"ASSUMED PERMITS" MEANS THE PERMITS SET FORTH ON SCHEDULE 1.1(I).
(J)
"ASSUMED WARRANTY OBLIGATIONS" MEANS (I) THE AMOUNT SET FORTH ON
SCHEDULE 1.1(J) FOR EACH PRODUCT MANUFACTURED AND SHIPPED BY THE BUSINESS FOR OR
ON BEHALF OF IBM OR LENOVO ON OR BEFORE THE CLOSING THAT IS RETURNED TO BUYER
AFTER THE CLOSING PURSUANT TO SECTION 13.2.1 OF THE SUPPLY AGREEMENT
#4902RL1698, DATED FEBRUARY 28, 2003, BETWEEN IBM AND SANMINA-SCI,
SECTION 13.2.1 OF THE SUPPLY AGREEMENT #4905RL0274, DATED APRIL 29, 2005,
3
between Lenovo and Sanmina-SCI or Section 13.2.1 of the Supply Agreement
#4905RL0316, dated April 29, 2005, between Lenovo and Sanmina-SCI, as the case
may be; and (ii) Damages (as defined in Section 9.1) incurred by Buyer in
connection with Section 16.1(a) of the Supply Agreement #4902RL1698, dated
February 28, 2003, between IBM and Sanmina-SCI, Section 16.1(a) of the Supply
Agreement #4905RL0274, dated April 29, 2005, between Lenovo and Sanmina-SCI or
Section 16.1(a) of the Supply Agreement #4905RL0316, dated April 29, 2005,
between Lenovo and Sanmina-SCI, in each case with respect to products
manufactured and shipped by the Business for or on behalf of IBM or Lenovo, as
the case may be, on or before the Closing.
(K)
"BOOKS AND RECORDS" OF ANY PERSON MEANS ALL FILES, DOCUMENTS,
INSTRUMENTS, PAPERS, BOOKS AND RECORDS RELATING TO THE BUSINESS, OPERATIONS,
CONDITION OF (FINANCIAL OR OTHER), RESULTS OF OPERATIONS AND ASSETS OF SUCH
PERSON, INCLUDING WITHOUT LIMITATION FINANCIAL STATEMENTS, TAX RETURNS, BUDGETS,
RELIABILITY AND COST DATA, PRICING GUIDELINES, LEDGERS, JOURNALS, DEEDS, TITLE
POLICIES,