Common use of Asset Purchase Clause in Contracts

Asset Purchase. (a) Upon the terms and subject to the conditions set forth in this Agreement, at the Asset Closing, the Company shall, and shall cause its Subsidiaries to, sell, assign, transfer, convey and deliver to Purchaser, and Purchaser shall, and/or shall cause its Subsidiaries to, purchase, acquire and accept from the Company and its Subsidiaries, free and clear of all Liens other than Permitted Liens, all of the Company’s and such Subsidiaries’ respective right, title and interest in and to the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date (collectively, the “Purchased Assets”): (i) the Owned Real Property (as defined in the Merger Agreement) and any fixtures, machinery, equipment and tangible personal property attached to or located on the Owned Real Property that relate to or are used or held for use in connection with the SMS Business; (ii) all inventories (including raw materials, purchased goods, parts, containers, recycled materials, work in process, supplies, finished goods and demo and consignment inventory) on the books of the Company or its Subsidiaries; (iii) all lists of current, former and prospective customers, suppliers, resellers and vendors, customers’ files, credit information, parts lists, business correspondence, business lists, brochures, manuals, sales literature, promotional literature and other selling, advertising and marketing materials and all other similar assets and rights related to the conduct of the SMS Business; (iv) all of the machinery, equipment, tools, spare parts, all transportation and office equipment, computers, furniture, furnishings, vehicles, and other fixed assets and personal property owned by the Company and its Subsidiaries and related to, used or held for use in connection with the SMS Business (including any and all hard drives, disks, diskettes, tapes or other tangible media), and in the case of any such items which are leased or licensed by the Company or its Subsidiaries, the Company’s and such Subsidiaries’ leasehold or license interest therein; (v) all Contracts to which any of the Company or its Subsidiaries are a party to the extent they are related to the SMS Business, including the SMS Agreements (collectively, the “Assumed Contracts”); (vi) all Intellectual Property owned by the Company and its Subsidiaries and that is related to the SMS Business and was used, is used or is held for use in the SMS Business (the “Transferred Business Intellectual Property”); (vii) all information technology systems, network or telecommunications equipment and software, desktop computer software, accounting, finance and database software, general software development and control systems, and tools, environments and other general information technology functionality, in each case that is used in the operation of the SMS Business; (viii) all Permits used in the SMS Business; (ix) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the SMS Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (x) all deposits to the extent made by the Company or its Subsidiaries in connection with the SMS Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to other Assumed Liabilities; (xi) all prepaid assets paid by the Company or its Subsidiaries to the extent in connection with the SMS Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to Assumed Liabilities; (xii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the SMS Business, Purchased Assets or Assumed Liabilities; (xiii) all financial and other books and all other documents, microfilm and business records (other than Tax Returns) and correspondence, wherever located, related to the SMS Business, the Purchased Assets or the Assumed Liabilities; (xiv) personnel records for each Transferred SMS Employee (subject to the prior consent of such Transferred SMS Employee to the extent such consent is required by applicable Law in connection with the transfer of such personnel records of such Transferred SMS Employee); and (xv) all other assets of the Company and its Subsidiaries that relate to, or are used in the conduct of, the SMS Business, are not Excluded Assets and are not of a category or type described in the foregoing clauses of this Section 2.1(a). (b) The Seller Parties and the Purchaser Parties expressly understand and agree that the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date shall be excluded from the Purchased Assets (the “Excluded Assets”): (i) all capital stock or other equity interests in any Person; (ii) all rights arising from Excluded Liabilities; and (iii) the Maintenance Agreements; (iv) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the Maintenance Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (v) all deposits to the extent made by the Company or its Subsidiaries to the extent related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vi) all prepaid assets paid by the Company or its Subsidiaries to the extent in related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the Maintenance Agreements; (viii) all other assets of the Company and its Subsidiaries that relate exclusively to, or are used exclusively in the conduct of, the Maintenance Business; and (ix) any assets that are excluded from the Purchased Assets pursuant to Section 3.1(c).

Asset Purchase. (a) Upon the terms On and subject to the terms and conditions set forth in this Agreement, at and except as set forth in this Agreement, on the Asset ClosingClosing Date, the Company shallBuyer shall purchase from Seller and Seller shall sell, and shall cause its Subsidiaries to, sellconvey, assign, transfer, convey and deliver to PurchaserBuyer, all properties, assets, and Purchaser shallrights owned by Seller as of the Closing Date and used, and/or shall cause its Subsidiaries related or incidental to, purchaseor otherwise associated with the Menasha Operations and the CPC Business, acquire whether tangible or intangible, real or personal (the "Transferred Assets"), including without limitation the following: a. all notes, accounts receivable and accept from the Company long term receivables, including intercompany receivables for products shipped or sold or services rendered by a division, subsidiary or affiliate of Seller; b. all prepayments, prepaid expenses and its Subsidiariesall interests in insurance policies; c. all raw materials, free work-in-process, finished goods, unsigned goods and clear other inventories and related supplies; d. all Proprietary Rights (as defined in Section 6. l. below); e. all real property, whether owned or leased, and all plants, buildings and other improvements located on such owned or leased property, and all easements, licenses, rights of way, permits and all Liens other than Permitted Liensappurtenances to such owned or leased property, including, without limitation, all of the Company’s and such Subsidiaries’ respective right, title and interest appurtenant rights in and to the following assets and all of the goodwill associated therewith (in each case after taking into account the effects ofpublic streets, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date whether or not vacated (collectively, the “Purchased Assets”): (i) the Owned "Real Property (as defined in the Merger Agreement) and any fixtures, machinery, equipment and tangible personal property attached to or located on the Owned Real Property that relate to or are used or held for use in connection with the SMS Business; (ii) Estate"); f. all inventories (including raw materials, purchased goods, parts, containers, recycled materials, work in process, office supplies, finished goods and demo and consignment inventory) on the books of the Company or its Subsidiaries; (iii) all lists of current, former and prospective customers, suppliers, resellers and vendors, customers’ files, credit information, parts lists, business correspondence, business lists, brochures, manuals, sales literature, promotional literature and other selling, advertising and marketing materials and all other similar assets and rights related to the conduct of the SMS Business; (iv) all of the machinery, equipment, toolsproduction supplies, spare parts, other miscellaneous supplies, and other tangible property of any kind wherever located; g. all leasehold interests and improvements and all machinery, equipment (including all transportation and office equipment), fixtures, trade fixtures, tools, dyes and furniture, computers, furniture, furnishings, automobiles and vehicles, wherever located including, without limitation, the machinery and equipment listed on Schedule A which have been transferred from the Linden facility to the Menasha Operations; h. all rights and claims existing under contracts, leases, insurance policies, licenses, permits, supply and distribution arrangements, sales and purchase agreements and orders, employment and consulting agreements, consignment arrangements, warranties, consents, orders, registrations, privileges, memberships, certificates, approvals or other fixed assets and personal property owned by the Company and its Subsidiaries and related to, used or held for use in connection with the SMS Business (including any similar rights and all hard drivesother agreements, disksarrangements and understandings; i. all lists and records pertaining to customers, diskettessuppliers, tapes or distributors, personnel and agents and all other tangible media)files, documents, correspondence, plats, architectural plans, drawings and in the case specifications, computer programs and business records of any such items which are leased or licensed by the Company or its Subsidiariesevery kind and nature; j. all claims, the Company’s and such Subsidiaries’ leasehold or license interest therein; (v) all Contracts to which any of the Company or its Subsidiaries are a party to the extent they are related to the SMS Businessrefunds, including the SMS Agreements (collectivelycredits, the “Assumed Contracts”); (vi) all Intellectual Property owned by the Company and its Subsidiaries and that is related to the SMS Business and was used, is used or is held for use in the SMS Business (the “Transferred Business Intellectual Property”); (vii) all information technology systems, network or telecommunications equipment and software, desktop computer software, accounting, finance and database software, general software development and control systems, and tools, environments and other general information technology functionality, in each case that is used in the operation of the SMS Business; (viii) all Permits used in the SMS Business; (ix) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the SMS Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (x) all deposits to the extent made by the Company or its Subsidiaries in connection with the SMS Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to other Assumed Liabilities; (xi) all prepaid assets paid by the Company or its Subsidiaries to the extent in connection with the SMS Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to Assumed Liabilities; (xii) all causes of action, claims, demandschoses in action, rights (including of recovery and rights under or pursuant to warranties, representations of set-off of every kind and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the SMS Business, Purchased Assets or Assumed Liabilitiesnature; (xiii) all financial and other books and all other documents, microfilm and business records (other than Tax Returns) and correspondence, wherever located, related to the SMS Business, the Purchased Assets or the Assumed Liabilities; (xiv) personnel records for each Transferred SMS Employee (subject to the prior consent of such Transferred SMS Employee to the extent such consent is required by applicable Law in connection with the transfer of such personnel records of such Transferred SMS Employee); and (xv) all other assets of the Company and its Subsidiaries that relate to, or are used in the conduct of, the SMS Business, are not Excluded Assets and are not of a category or type described in the foregoing clauses of this Section 2.1(a). (b) The Seller Parties and the Purchaser Parties expressly understand and agree that the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date shall be excluded from the Purchased Assets (the “Excluded Assets”): (i) all capital stock or other equity interests in any Person; (ii) all rights arising from Excluded Liabilities; and (iii) the Maintenance Agreements; (iv) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the Maintenance Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (v) all deposits to the extent made by the Company or its Subsidiaries to the extent related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vi) all prepaid assets paid by the Company or its Subsidiaries to the extent in related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the Maintenance Agreements; (viii) all other assets of the Company and its Subsidiaries that relate exclusively to, or are used exclusively in the conduct of, the Maintenance Business; and (ix) any assets that are excluded from the Purchased Assets pursuant to Section 3.1(c).

Asset Purchase. (a) Upon At the Closing and upon the terms and subject to the conditions set forth in this Agreementcontained herein, at each of the Asset Closing, the Company shall, and Business Sellers shall cause its Subsidiaries to, sell, transfer, assign, transfer, convey and deliver to Purchaserthe Buyer, and Purchaser shall, and/or the Buyer shall cause its Subsidiaries to, purchase, acquire and accept from the Company and its Subsidiaries, free and clear of all Liens other than Permitted Lienseach Business Seller, all of the Company’s and such Subsidiaries’ respective right, title and interest in and to all property and assets (other than the following assets and all Excluded Assets) of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date (collectively, the “Purchased Assets”): (i) the Owned Real Property (as defined in the Merger Agreement) and any fixtures, machinery, equipment and tangible personal property attached to or located on the Owned Real Property such Business Seller that relate to or are used or held for use in connection with the SMS Business; (ii) all inventories (including raw materials, purchased goods, parts, containers, recycled materials, work in process, supplies, finished goods and demo and consignment inventory) on the books of the Company or its Subsidiaries; (iii) all lists of current, former and prospective customers, suppliers, resellers and vendors, customers’ files, credit information, parts lists, business correspondence, business lists, brochures, manuals, sales literature, promotional literature and other selling, advertising and marketing materials and all other similar assets and rights related to the conduct of the SMS Business; (iv) all of the machinery, equipment, tools, spare parts, all transportation and office equipment, computers, furniture, furnishings, vehicles, and other fixed assets and personal property owned by the Company and its Subsidiaries and related to, used or held for use in connection with the SMS Business (including any and all hard drives, disks, diskettes, tapes or other tangible media), and in the case of any such items which are leased or licensed by the Company or its Subsidiaries, the Company’s and such Subsidiaries’ leasehold or license interest therein; (v) all Contracts to which any of the Company or its Subsidiaries are a party to the extent they are related to the SMS Business, including the SMS Agreements (collectively, the “Business Assets”), free and clear of all Liens (other than Permitted Liens), wherever located and whether or not said Business Assets appear or are reflected upon the books and records of such Business Seller, which Business Assets shall include the following: (a) all work in process, processed or finished goods, raw material and other items of inventory or goods held for sale; (b) all machinery, equipment, vehicles, furniture, fixtures, leasehold improvements, computer and computer-related equipment (including servers), tools, parts, supplies and other personal property; (c) all rights that the Business Sellers may have under any and all Contracts, including any Property Management Agreements, Declarations and Rental Agency Appointment Agreements to which any Business Seller is a party (the “Assumed Business Contracts”); (vid) all Intellectual Property owned by Property, including all goodwill associated therewith and the Company right to prosecute and its Subsidiaries and that is related to the SMS Business and was usedrecover damages for any past, is used present or is held for use in the SMS Business (the “Transferred Business Intellectual Property”); (vii) all information technology systems, network or telecommunications equipment and software, desktop computer software, accounting, finance and database software, general software development and control systems, and tools, environments and other general information technology functionality, in each case that is used in the operation of the SMS Business; (viii) all Permits used in the SMS Business; (ix) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the SMS Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any future violations of the foregoing; (xe) all deposits computer and information technology systems (including any Software or hardware used in connection therewith); (f) all telephone numbers, fax numbers, email addresses, directory listings, advertising, business forms, files, documents and books and records, in each case, relating to the extent made by other Business Assets, including, customer lists, customer prospect lists, customer addresses, delivery schedules, supplier lists, mailing lists, promotional materials and purchasing materials; (g) all rights of the Company Business Sellers in and to all internet domain names (whether in use or its Subsidiaries in connection with the SMS Businessnot) and social media account registrations, and any claim, remedy or other right related to any and all goodwill associated therewith and all of the foregoing, Business Sellers’ rights in each case to the extent content at the websites and social media sites located at or associated with Assumed Contracts of such domain names or other Purchased Assets, or related to other Assumed Liabilitiessocial media account registrations; (xih) all prepaid assets paid by the Company or its Subsidiaries to the extent in connection with the SMS Businessforms, advertising material, and any claimsales and marketing files, remedy or other right related to any of the foregoingincluding current promotion copy and promotion copy data bases, in each case to the extent associated with Assumed Contracts or other Purchased Assetsweb images, or related to Assumed Liabilitiesweb copy and marketing materials; (xiii) all rights of any Business Seller in and to the Licenses and Permits relating to the Business; (j) all causes of action, claims, demandswarranties, guarantees, refunds, rights (of recovery and set off of every kind and character, including rights and claims against suppliers and customers and insurance claims (other than those relating solely to Excluded Assets or Excluded Liabilities); (k) all rights under or pursuant to warranties, representations indemnities and guarantees made by suppliers, manufacturers or contractors) and privileges similar rights against third partiesparties (other than those relating to Excluded Assets); (l) the amount of, whether liquidated and any and all rights to, any insurance proceeds received by any Business Seller after the date hereof in respect of any loss, destruction or unliquidatedcondemnation of any Business Assets occurring prior to or after the Closing or relating to any Assumed Liabilities; (m) all interests in any real property, fixed or contingentincluding the Resorts, any Timeshare Interests owned by any Business Seller, the Ground Lease Property and the ▇▇▇▇ ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or Project; provided, however, that, upon the written request of the Buyer prior to the Asset Closing Date which relate to the SMS Business, Purchased Assets or Assumed Liabilities; (xiii) all financial and other books and all other documents, microfilm and business records (other than Tax Returns) and correspondence, wherever located, related to the SMS BusinessClosing, the Purchased Assets or Business Sellers shall terminate the Assumed Liabilities; (xiv) personnel records for each Transferred SMS Employee (subject to the prior consent of such Transferred SMS Employee to the extent such consent is required by applicable Law in connection with the transfer of such personnel records of such Transferred SMS Employee); and (xv) all other assets of the Company and its Subsidiaries that relate to, or are used in the conduct of, the SMS Business, are not Excluded Assets and are not of a category or type described in the foregoing clauses of this Section 2.1(a). (b) The Seller Parties and the Purchaser Parties expressly understand and agree that the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date shall be excluded from the Purchased Assets (the “Excluded Assets”): (i) all capital stock or other equity interests in any Person; (ii) all rights arising from Excluded Liabilities; and (iii) the Maintenance Agreements; (iv) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the Maintenance Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (v) all deposits to the extent made by the Company or its Subsidiaries to the extent related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vi) all prepaid assets paid by the Company or its Subsidiaries to the extent in related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇ ▇▇▇▇▇▇ Project and Contracts related thereto and any Liabilities resulting from the ▇▇▇▇ ▇▇▇▇▇▇ Project or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the Maintenance Agreementstermination thereof shall be Excluded Liabilities; (viiin) all other current assets of the Company and its Subsidiaries that relate exclusively to, or are used exclusively in Business Sellers set forth on Schedule 1.1(n) (the conduct of, the Maintenance Business“Current Assets”); and (ixo) any assets the Business as a going concern and all goodwill associated with the Business (including elements of goodwill, such as the workforce in place, covenants not to compete, patents and trademarks). At the Closing and upon the terms and subject to the conditions contained herein, PHR shall sell, transfer, assign, convey and deliver to the Buyer, and the Buyer shall purchase, acquire and accept from PHR, all right, title and interest in and to all Property Management Agreements that are excluded from PHR is a party (the Purchased Assets pursuant to Section 3.1(c“PHR Management Contracts”), free and clear of all Liens (other than Permitted Liens).

Asset Purchase. (a) Upon On the terms and subject to the conditions set forth in this Agreement, at the Asset ClosingPurchaser shall purchase from the Company, and the Company shallshall sell, and shall cause its Subsidiaries to, sellconvey, assign, transfer, convey transfer and deliver to Purchaserthe Purchaser on the Closing Date, all of the Company's right, title and Purchaser shallinterest as of the Closing Date in all of its properties, and/or shall cause its Subsidiaries toassets and rights of any kind, purchasewhether tangible or intangible, acquire and accept from real or personal (but excluding the Company and its SubsidiariesExcluded Assets) (the "Purchased Assets"), free and clear of all Liens other than liens (except Permitted Liens), all charges, security interests, encumbrances and restrictions of the Company’s and such Subsidiaries’ respective rightwhatever nature, title and interest in and to the following assets and all of the goodwill associated therewith (in each case after taking into account the effects ofincluding, and assuming the completion ofbut not limited to, the Restructuring), as the same shall exist on the Asset Closing Date (collectively, the “Purchased Assets”):following: (i) the Owned Real Property (as defined in the Merger Agreement) all accounts and any fixtures, machinery, equipment and tangible personal property attached to or located on the Owned Real Property that relate to or are used or held for use in connection with the SMS Businessnotes receivable; (ii) cash, cash equivalents, certificates of deposit, marketable securities, bank accounts and similar items; (iii) any employee benefit plan, program, policy or arrangement of the Company set forth in the Benefits Plan Schedule, including any assets in any related trusts, other than any such employee benefit plan, program, policy or arrangement identified on the Excluded Assets Schedule attached hereto; (iv) all inventories (including finished goods inventories, raw materials, purchased goods, parts, containers, recycled packaging materials, work in process, supplies, consigned goods and finished goods and demo and consignment inventory) on the books of the Company or its Subsidiaries; (iii) all lists of current, former and prospective customers, suppliers, resellers and vendors, customers’ files, credit information, parts lists, business correspondence, business lists, brochures, manuals, sales literature, promotional literature and other selling, advertising and marketing materials and all other similar assets and rights related to the conduct of the SMS Business; (iv) all of the machinery, equipment, tools, spare parts, all transportation and office equipment, computers, furniture, furnishings, vehicles, and other fixed assets and personal property owned by the Company and its Subsidiaries and related to, used or held for use in connection with the SMS Business (including any warehoused inventories, inventories covered by purchase orders and all hard drives, disks, diskettes, tapes or other tangible mediagoods in transit), and in the case of any such items which are leased or licensed by the Company or its Subsidiarieswherever located (collectively, the Company’s and such Subsidiaries’ leasehold or license interest therein"Inventory"); (v) all Contracts Proprietary Rights owned by, issued to or licensed to the Company and which any are necessary for or related to or used in the operation of the business of the Company as conducted on the Closing Date, along with all income, royalties, damages and payments due or its Subsidiaries are a party payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to ▇▇▇ and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the extent they are related to the SMS Businessworld), in each case including the SMS Agreements items set forth on the attached "Proprietary Rights Schedule" (collectively, the “Assumed Contracts”"Purchased Proprietary Rights"); (vi) all Intellectual Property owned by of its contracts, licenses, leases and other agreements, including those described on the Company attached Contracts Schedule and its Subsidiaries and that is related to all security deposits relating thereto (collectively, the SMS Business and was used, is used or is held for use in the SMS Business (the “Transferred Business Intellectual Property”"Assumed Contracts""); (vii) all information technology systems, network or telecommunications equipment and software, desktop computer software, accounting, finance and database software, general software development and control systems, and tools, environments and other general information technology functionality, in each case that is used in the operation of the SMS BusinessLeased Real Property; (viii) all Permits used in the SMS Businessleasehold improvements and all machinery, equipment, vehicles, fixtures, trade fixtures, computers and related software and furniture; (ix) all accounts receivableoffice supplies, notes receivable production supplies and other rights to payment supplies, spare parts, other miscellaneous supplies and other tangible property of the Company or any of its Subsidiaries to the extent related to the SMS Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoingkind; (x) all prepayments, prepaid expenses and cash deposits (other than those related to Excluded Assets or Excluded Liabilities) and employee advances (to the extent made by the Company or its Subsidiaries in connection with the SMS Business, and any claim, remedy or other right related relating to any of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to other Assumed LiabilitiesTransferred Employees); (xi) all prepaid assets paid by the Company or its Subsidiaries to the extent claims, causes of action, choses in connection with the SMS Businessaction, rights of recovery and rights of set-off of any claim, remedy or kind (other right than those related to any of the foregoing, in each case to the extent associated with Assumed Contracts Excluded Assets or other Purchased Assets, or related to Assumed Excluded Liabilities); (xii) all causes of action, claims, demands, rights the right to receive and retain mail and other communications (including rights under other than those related to Excluded Assets or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractorsExcluded Liabilities) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to all telephone numbers used by the Asset Closing Date which relate to the SMS Business, Purchased Assets or Assumed LiabilitiesCompany; (xiii) all financial lists, records and other books information pertaining to accounts, Transferred Employees and referral sources; all lists and records pertaining to suppliers and customers; and all other documentsstudies, microfilm plans, books, ledgers, files and business records of every kind (other than Tax Returnsincluding all financial, business and marketing plans and information); in each case whether evidenced in writing, electronic data (including by computer) and correspondenceor otherwise, wherever located, except in all cases those related to the SMS Business, the Purchased Excluded Assets or the Assumed Excluded Liabilities; (xiv) personnel records for each Transferred SMS Employee all advertising, marketing and promotional materials, all archival materials and all other printed or written materials; (subject to the prior consent of such Transferred SMS Employee xv) to the extent transferable, all permits, licenses, certifications, authorizations and approvals from all permitting, licensing, accrediting and certifying agencies, organizations or groups (including all of the foregoing listed or described on the attached License Schedule and the attached Environmental and Safety Matters Schedule), and the rights to all data and records held by such consent is required by applicable Law in connection with the transfer of such personnel records of such Transferred SMS Employeeagencies; (xvi) its legal and business names (and derivations thereof); (xvii) all goodwill as a going concern; and (xvxviii) all other assets of the Company and its Subsidiaries that relate toproperties, or are used in the conduct of, the SMS Business, are not Excluded Assets and are not of a category or type described in the foregoing clauses of this Section 2.1(a). (b) The Seller Parties and the Purchaser Parties expressly understand and agree that the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date shall be excluded from the Purchased Assets (the “Excluded Assets”): (i) all capital stock or other equity interests in any Person; (ii) all rights arising from Excluded Liabilities; and (iii) the Maintenance Agreements; (iv) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the Maintenance Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (v) all deposits to the extent made owned by the Company as of the Closing Date, or its Subsidiaries to in which the extent Company has an interest, and which are necessary for or related to or used by the Maintenance BusinessCompany, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vi) all prepaid assets paid by the Company or its Subsidiaries to the extent in related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the Maintenance Agreements; (viii) all other assets of the Company and its Subsidiaries that relate exclusively to, or are used exclusively in the conduct of, the Maintenance Business; and (ix) any assets that are excluded from the Purchased Assets pursuant to Section 3.1(c)not otherwise Excluded Assets.

Asset Purchase. (a) Upon On the terms and subject to the conditions set forth in this Agreement, at the Asset Closing, the Company shallBuyer shall purchase from Seller, and Seller shall (and the Principals shall cause its Subsidiaries Seller to) sell, sellconvey, assign, transfer, convey transfer and deliver to PurchaserBuyer on the Closing Date, all of Seller's right, title and Purchaser shallinterest as of the Closing Date in all of its properties, and/or shall cause its Subsidiaries toassets and rights of any kind, purchasewhether tangible or intangible, acquire real or personal, wherever located and accept from by whomever possessed (but excluding the Company and its SubsidiariesExcluded Assets) (the "Purchased Assets"), free and clear of all Liens other than Permitted Liens, all of including the Company’s and such Subsidiaries’ respective right, title and interest in and to the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date (collectively, the “Purchased Assets”):following: (i) all accounts receivable and notes receivable (including the Owned Real Property (as defined in the Merger Agreement) and any fixtures, machinery, equipment and tangible personal property attached to or located on the Owned Real Property that relate to or are used or held for use in connection with the SMS BusinessAccounts Receivable); (ii) all inventories cash on hand in the Stores in the amounts listed in the Cash Schedule, which schedule may be amended by Buyer to reduce the cash on hand included in the Purchased Assets in one or more Stores by written notice to Seller not less than three Business Days prior to the Closing Date (including as so adjusted, the “Cash on Hand”); (iii) all open sales orders; (iv) all finished goods inventories, raw materials, purchased goods, parts, containers, recycled packaging materials, work in process, supplies, consigned goods and finished goods and demo and consignment inventory) on the books of the Company or its Subsidiaries; (iii) all lists of current, former and prospective customers, suppliers, resellers and vendors, customers’ files, credit information, parts lists, business correspondence, business lists, brochures, manuals, sales literature, promotional literature and other selling, advertising and marketing materials and all other similar assets and rights related to the conduct of the SMS Business; (iv) including all of the machineryinventories located at the Head Office/Warehouse, equipmentinventories located at the Stores, toolsinventories covered by purchase orders, spare parts, all transportation goods in transit and office equipment, computers, furniture, furnishings, vehicles, and other fixed assets and personal property owned by the Company and its Subsidiaries and related to, used or held for use in connection with the SMS Business returned goods) (including any and all hard drives, disks, diskettes, tapes or other tangible media), and in the case of any such items which are leased or licensed by the Company or its Subsidiariescollectively, the Company’s and such Subsidiaries’ leasehold or license interest therein"Inventory"); (v) all Contracts Intellectual Property used by, owned by, issued to which any or licensed to Seller, along with all income, royalties, damages and payments due or payable as of the Company Closing Date or its Subsidiaries are a party to the extent they are related to the SMS Businessthereafter (including damages and payments for past, including the SMS Agreements (collectivelypresent or future infringements or misappropriations thereof, the “Assumed Contracts”);right to ▇▇▇ and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be (vi) all Intellectual Property owned by rights under Contracts, licenses, leases and other agreements, including the Company Assumed Vendor Contracts and its Subsidiaries the Contracts described on the attached Contracts Schedule and all deposits relating thereto (collectively, the "Assumed Contracts"); provided, that is related to the SMS Business and was used, is used Assumed Contracts shall not include any oral Contracts or is held for use in any Contracts with suppliers of the SMS Business (other than the “Transferred Business Intellectual Property”Assumed Vendor Contracts); (vii) all information technology systemsleasehold improvements and all machinery, network or telecommunications equipment equipment, fixtures and software, desktop computer software, accounting, finance and database software, general software development and control systems, and tools, environments and other general information technology functionality, in each case that is used in the operation of the SMS Businesstrade fixtures; (viii) all Permits Store location furniture, office supplies, production supplies and any other supplies, spare parts, other miscellaneous supplies (including telephones, data lines, circuits, fax machines, copiers and computers and related software), and other tangible property of any kind used in the SMS Businessa Store location; (ix) all accounts receivableprepayments, notes receivable prepaid expenses and landlord and customer cash deposits (other rights to payment of the Company or any of its Subsidiaries to the extent than those related to the SMS Business, together with any unpaid interest Excluded Assets or fees accrued thereon or other amounts due with respect thereto, Excluded Liabilities) and any claim, remedy or other right related to any of the foregoingadvances (including employee advances); (x) all deposits to the extent made by the Company or its Subsidiaries claims, refunds, credits, causes of action, choses in connection with the SMS Businessaction, rights of recovery and rights of set-off of any claim, remedy or kind (other right than those related to any Excluded Assets or Excluded Liabilities), whether arising by way of the foregoing, in each case to the extent associated with Assumed Contracts counterclaim or other Purchased Assets, or related to other Assumed Liabilitiesotherwise; (xi) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Excluded Liabilities) and all prepaid assets paid telephone numbers used by the Company or its Subsidiaries to the extent in connection with the SMS Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to Assumed Liabilities; (xii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations indemnities and guarantees made by suppliers, manufacturers or contractors) and privileges all similar rights against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior parties to the Asset Closing Date which relate extent related to the SMS Business, any Purchased Assets or Assumed LiabilitiesAssets; (xiii) the right to ▇▇▇▇ and receive payment for products shipped or delivered and/or services performed but unbilled or unpaid as of the Closing; (xiv) all financial advertising, marketing and other books promotional materials, all archival materials and all other documentsprinted or written materials; (xv) all insurance benefits, microfilm including rights and business records (other than Tax Returns) and correspondenceproceeds, wherever located, related arising from or relating to the SMS Business, the Purchased Assets or the Assumed Liabilities; (xivxvi) personnel all lists, records for and other information pertaining to accounts, Transferred Employees and referral sources; all lists and records pertaining to suppliers and customers; and all drawings, reports, studies, plans, books, ledgers, files and business and accounting records of every kind (including all financial, business and marketing plans and information); in each Transferred SMS Employee case whether evidenced in writing, electronic data (subject including by computer) or otherwise, except in all cases those related to Excluded Assets or Excluded Liabilities; (xvii) all permits, licenses, franchises, orders, certifications, authorizations and approvals from all permitting, licensing, accrediting and certifying agencies, organizations or groups (including all of the foregoing listed or described on the Permits Schedule and the Environmental and Safety Schedule), and the rights to all data and records held by such agencies; (xviii) Seller's legal and business names (and all derivations thereof); (xix) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Body), all Testing Records, sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and intellectual property files relating to the prior consent of such Transferred SMS Employee to Purchased Intellectual Property (xx) the extent such consent is required by applicable Law tangible personal property described in connection with the transfer of such personnel records of such Transferred SMS Employee)Head Office/Warehouse Tangible Property Schedule; (xxi) all goodwill as a going concern; and (xvxxii) all other properties, assets and rights owned by Seller as of the Company and its Subsidiaries that relate to, or are used in the conduct of, the SMS Business, are not Excluded Assets and are not of a category or type described in the foregoing clauses of this Section 2.1(a). (b) The Seller Parties and the Purchaser Parties expressly understand and agree that the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date shall be excluded from the Purchased Assets (the “Excluded Assets”): (i) all capital stock or other equity interests in any Person; (ii) all rights arising from Excluded Liabilities; date hereof and (iii) the Maintenance Agreements; (iv) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the Maintenance Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (v) all deposits to the extent made by the Company or its Subsidiaries to the extent related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vi) all prepaid assets paid by the Company or its Subsidiaries to the extent in related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the Maintenance Agreements; (viii) all other assets of the Company and its Subsidiaries that relate exclusively to, or are used exclusively in the conduct of, the Maintenance Business; and (ix) any assets that are excluded from the Purchased Assets pursuant to Section 3.1(c).

Asset Purchase. (a) Upon the terms and subject to the conditions set forth in this AgreementAgreement and in the Intellectual Property Matters Agreement in the form attached hereto as Exhibit A (the “IPMA”) as applicable, at the Asset ClosingClosing (as defined below), the Company shall, and Seller shall or shall cause one or more of its Subsidiaries to, to sell, assign, transfer, convey and deliver to the Purchaser, and Purchaser shall, and/or or a designated Subsidiary of Purchaser shall cause its Subsidiaries to, purchase, acquire and accept from the Company and its Seller or such Subsidiaries, free and clear of all Liens other than Permitted Liens, all of the CompanySeller’s and such Subsidiaries’ respective right, title and interest in and to the following assets and properties, free and clear of Liens other than Permitted Liens (all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), such assets collectively referred to herein as the same shall exist on the Asset Closing Date (collectively, the “Purchased Assets”): (i) those current product lines of Seller, and those discontinued, predecessor and legacy product lines of the Owned Real Property Business from the prior ten (as defined 10) years (the “Discontinued Products”), in each case described on Schedule 2.1(i) of the Merger Agreement) and any fixturesDisclosure Letter (collectively, machinery, equipment and tangible personal property attached to or located on the Owned Real Property that relate to or are used or held for use in connection with the SMS Business“Seller Products”); (ii) all inventories (including raw materials, purchased goods, parts, containers, recycled materials, work in process, supplies, finished goods and demo and consignment inventorythe tangible personal property assets of Seller listed on Schedule 2.1(ii) on the books of the Company or its SubsidiariesDisclosure Letter, including the fixed assets listed therein (the “Tangible Assets”); (iii) all lists inventory, raw materials, works in progress and finished goods exclusively relating to any of currentthe Seller Products or otherwise exclusively relating to the Business that exist as of the Closing Date (the “Inventory Assets”); provided that with respect to any and all triple-quadrupole (“QQQ”) mass spectrometry (“MS”) related inventories which could be used for either the GC-QQQ-MS product line (which constitutes a Seller Product) or the LC-QQQ-MS product line (which does not constitute a Seller Product), former (A) inventory which is designated in the applicable production forecasts of the Varian Companies as being for GC-QQQ-MS shall constitute Inventory Assets hereunder and prospective customersinventory which is designated in such production forecasts as being for LC-QQQ-MS shall not constitute Inventory Assets hereunder, suppliersand (B) inventory which is either designated in the applicable production forecasts of the Varian Companies as being for both GC-QQQ-MS and LC-QQQ-MS, resellers or inventory which is not designated for either such product line, shall be allocated as Inventory Assets hereunder and vendorsnon-Inventory Assets on the basis of the ratio of the total inventory designated for GC-QQQ-MS to the total inventory designated for LC-QQQ-MS in Varian’s fiscal year 2009; (iv) true and complete copies of all Seller’s customer list, customers’ filescustomer lead list, credit informationfinished goods inventory list, parts listsproduction data, business correspondence, business lists, brochures, manuals, sales literature, promotional literature manuals and engineering records and other sellingbusiness records that, advertising in each case, exclusively relate to, or are solely used in the operation of the Business (including but not limited to any such records and marketing materials information that are exclusively related to the Purchased Assets) (collectively, the “Business Records”) provided, however, that the Business Records shall not include any (i) employee-related or employee benefit-related files or records, employee benefit plans or documents relating to commitments and all other similar assets arrangements with employees of Seller or its Affiliates, except for personnel files for Transferred Employees, or (ii) books and rights related records that relate to or include information of third parties that is subject to a confidentiality agreement that is not a Purchased Asset; provided further that Seller shall retain a copy of any Business Records which are necessary or desirable for tax reporting purposes or for responding to queries or claims with respect to the conduct of the SMS Business; (iv) all Business prior to the Closing or the defense of any claims under the terms of this Agreement or any other Transaction Document; and provided further that it is acknowledged, agreed and understood by Purchaser that Business Records relating to Discontinued Products will be transferred by Seller only to the extent that such Business Records exist as of the machinery, equipment, tools, spare parts, all transportation Closing and office equipment, computers, furniture, furnishings, vehicles, and other fixed assets and personal property owned by can be located through commercially reasonable efforts on the Company and its Subsidiaries and related to, used or held for use in connection with the SMS Business (including any and all hard drives, disks, diskettes, tapes or other tangible media), and in the case part of any such items which are leased or licensed by the Company or its Subsidiaries, the Company’s and such Subsidiaries’ leasehold or license interest thereinSeller; (v) all Contracts to which any unfulfilled customer purchase and supply orders of the Company Business as of the Closing Date which shall constitute Assumed Contracts hereunder; (vi) the rights of Seller or its Subsidiaries are a party any Subsidiary of Seller under those Contracts listed on Schedule 2.1(vi) of the Disclosure Letter to the extent they that such rights are related applicable to the SMS Business, including the SMS Agreements Business and assignable to Purchaser (collectively, the “Assumed Contracts”); (vivii) all the Transferred Intellectual Property owned by the Company and its Subsidiaries and that is related to the SMS Business and was used, is used or is held for use Rights described in the SMS Business (the “Transferred Business Intellectual Property”); (viiSchedule 2.1(vii) all information technology systems, network or telecommunications equipment and software, desktop computer software, accounting, finance and database software, general software development and control systems, and tools, environments and other general information technology functionality, in each case that is used in the operation of the SMS BusinessDisclosure Letter; (viii) all Permits used the Licensed Intellectual Property Rights as described in the SMS BusinessIPMA; (ix) all accounts receivable, notes receivable and other rights to payment the Transferred Licenses described in Schedule 2.1(ix) of the Company or any of its Subsidiaries Disclosure Letter, which shall also be deemed to the extent related to the SMS Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoingconstitute Assumed Contracts hereunder; (x) all deposits of the following finished goods inventory to the extent made by the Company that such items are already bolted to, attached to, put on or its Subsidiaries otherwise part of a Seller Product or in final test or production for use on or in connection with the SMS Business, and any claim, remedy or other right related to any a Seller Product as of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to other Assumed LiabilitiesClosing: SPS3 sample changers; autosamplers; autoinjectors; Lab GC accessories; and Lab GC consumables; (xi) all prepaid assets paid by the Company or its Subsidiaries demonstration and research inventory to the extent substantially related to or substantially used in connection with the SMS Business, whether located in the field organization or otherwise (including SPS3 sample changers, autosamplers, autoinjectors, Lab GC accessories, and any claim, remedy or other right related to any Lab GC consumables which form part of Seller Products included in such inventory in the foregoing, manner described in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to Assumed Liabilitiesclause (x) above); (xii) all causes of action, claims, demands, rights spare parts for the Business (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third partiesspare parts for any Discontinued Products), whether liquidated available at the factories or unliquidatedfield offices of the Business or otherwise; provided that, fixed with respect to any and all triple-quadrupole mass spectrometry related spare parts which could be used for either the GC-QQQ-MS products or contingentthe LC-QQQ-MS products (the “QQQ-MS Spare Parts”), ▇▇▇▇▇▇ or inchoate such QQQ-MS Spare Parts shall be allocated between Seller and Purchaser based upon the percentage of the total number of QQQ-MS Spare Parts that relate to events or breaches occurring on or prior were used solely for the GC-QQQ-MS product line (the “GC-QQQ Portion”) relative to the Asset Closing Date which relate percentage of the total number of QQQ-MS Spare Parts that were used solely for the LC-QQQ-MS product line relative to the SMS Businesspercentage of the total number of QQQ-MS Spare Parts that were used for combined GC-QQQ-MS/LC-QQQ-MS products (the “Combined QQQ-MS Portion”), Purchased Assets or Assumed Liabilitiesin each case, during Varian’s fiscal year 2009, such that the number of QQQ-MS Spare Parts held by Seller and/or its Affiliates as of the Closing (the “Closing QQQ-MS Spare Parts”) that are transferred to Purchaser hereunder shall be the sum of (x) the GC-QQQ Portion of the Closing QQQ-MS Spare Parts plus (y) a portion of the Closing QQQ-MS Parts equal to the Combined QQQ-MS Portion thereof multiplied by the quotient obtained by dividing (I) the total number of QQQ-MS Spare Parts that were used solely for the GC-QQQ-MS product line in Varian’s fiscal year 2009 by (II) the total number of QQQ-MS Spare Parts that were used for both the GC-QQQ-MS products and the LC-QQQ-MS products in Varian’s fiscal year 2009; (xiii) all financial true and complete copies of customer lists, invoices, manuals, production data or other books and all other documents, microfilm and technical business records (other than Tax Returns) and correspondencefor SPS3 sample changers, wherever located, related autosamplers or autoinjectors that were sold exclusively for use with Seller Products only to the SMS Business, extent that such records exist and can be located through commercially reasonable efforts on the Purchased Assets or part of Seller and clearly indicate on the Assumed Liabilitiesface of such documentation that such instruments were sold for use with a Seller Product; (xiv) personnel records for each Transferred SMS Employee all service, maintenance and support contracts of Seller and/or its Affiliates that exclusively relate to Seller Products and which are in effect as of the Closing, including, without limitation, any of the same with respect to Discontinued Products (subject the “Service Contracts”); provided, however, that Service Contracts which are not assignable by their terms and/or Service Contracts of any customer who has objected (whether before or after to the prior consent Closing) to the assignment of such Transferred SMS Employee Service Contract to the Purchaser hereunder shall in each case be deemed not to have been assigned to Purchaser hereunder and shall be handled in accordance with Section 2.5; and provided, further, that, to the extent there are Service Contracts which cover both Seller Products and products of Seller and/or its Affiliates which are not Seller Products, following the Closing the parties shall consult and co-operate together to divide such consent Service Contracts on an equitable basis such that Purchaser will service any Seller Products and Seller and/or its Affiliates will service any other products under such Service Contracts; (xv) the following documentation that exclusively relates to the Seller Products and that is required owned by applicable Law and in connection with the transfer possession of such personnel Seller as of the Closing: manufacturing documentation, including, without limitation, all records relating to the radioactive elements of such Transferred SMS Employeethe ICP-MS, hardware and firmware development documentation, software development documentation solely related to the software listed in Schedule 2.1(vii) of the Disclosure Letter, product safety documentation (relating to CE, UL/CSA, ETL, etc. standards), export control licenses and related export and import documentation, and marketing, sales and service documentation; and (xvxvi) all other assets goodwill associated with any of the Company and its Subsidiaries that relate to, or are used in the conduct of, the SMS Business, are not Excluded Assets and are not of a category or type assets described in the foregoing subparagraphs (i) through (xv). Notwithstanding anything herein to the contrary, it is understood and agreed that Seller shall only be obligated to use commercially reasonable efforts to locate and deliver the items described in clauses (iv), (xi), (xii), (xiii) and (xv) of this Section 2.1(a). 2.1 to Purchaser at the Closing and shall, following the Closing, promptly deliver any such items to Purchaser that, within sixty (b60) The days after the Closing, are identified by either Seller Parties and or Purchaser as still being in Seller’s possession following the Purchaser Parties expressly understand and agree that the following assets and all Closing (with such identification to have sufficient specificity as to location of the goodwill associated therewith relevant item so as to enable Seller to readily find, obtain and transfer same). Except as expressly provided in this paragraph, Seller shall have no liability whatsoever under this Agreement or otherwise for any failure to transfer or deliver the items described in clauses (in each case after taking into account the effects of, and assuming the completion of, the Restructuringxi), as the same shall exist on the Asset Closing Date shall be excluded from the Purchased Assets (the “Excluded Assets”): xii), (i) all capital stock or other equity interests in any Person; (ii) all rights arising from Excluded Liabilities; and (iii) the Maintenance Agreements; (iv) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the Maintenance Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (v) all deposits to the extent made by the Company or its Subsidiaries to the extent related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vi) all prepaid assets paid by the Company or its Subsidiaries to the extent in related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractorsxiii) and privileges against third parties, whether liquidated (xv) of this Section 2.1 to Purchaser either at or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to following the Asset Closing Date which relate to the Maintenance Agreements; (viii) all other assets of the Company and its Subsidiaries that relate exclusively to, or are used exclusively in the conduct of, the Maintenance Business; and (ix) any assets that are excluded from the Purchased Assets pursuant to Section 3.1(c)Closing.

Asset Purchase. (a) Upon the terms On and subject to the terms and conditions set forth in this Agreement, at and except as set forth in this Agreement, on the Asset ClosingClosing Date, the Company shallBuyer shall purchase from Seller and Seller shall sell, and shall cause its Subsidiaries to, sellconvey, assign, transfer, convey and deliver to PurchaserBuyer, all properties, assets, and Purchaser shallrights owned by Seller as of the Closing Date and used, and/or shall cause its Subsidiaries related or incidental to, purchaseor otherwise associated with the Menasha Operations and the CPC Business, acquire whether tangible or intangible, real or personal (the "Transferred Assets"), including without limitation the following: a. all notes, accounts receivable and accept from the Company long term receivables, including intercompany receivables for products shipped or sold or services rendered by a division, subsidiary or affiliate of Seller; b. all prepayments, prepaid expenses and its Subsidiariesall interests in insurance policies; c. all raw materials, free work-in-process, finished goods, consigned goods and clear other inventories and related supplies; d. all Proprietary Rights (as defined in Section 6. l. below); e. all real property, whether owned or leased, and all plants, buildings and other improvements located on such owned or leased property, and all easements, licenses, rights of way, permits and all Liens other than Permitted Liensappurtenances to such owned or leased property, including, without limitation, all of the Company’s and such Subsidiaries’ respective right, title and interest appurtenant rights in and to the following assets and all of the goodwill associated therewith (in each case after taking into account the effects ofpublic streets, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date whether or not vacated (collectively, the “Purchased Assets”): (i) the Owned Real Property (as defined in the Merger Agreement) and any fixtures, machinery, equipment and tangible personal property attached to or located on the Owned Real Property that relate to or are used or held for use in connection with the SMS Business"REAL ESTATE"); (ii) f. all inventories (including raw materials, purchased goods, parts, containers, recycled materials, work in process, office supplies, finished goods and demo and consignment inventory) on the books of the Company or its Subsidiaries; (iii) all lists of current, former and prospective customers, suppliers, resellers and vendors, customers’ files, credit information, parts lists, business correspondence, business lists, brochures, manuals, sales literature, promotional literature and other selling, advertising and marketing materials and all other similar assets and rights related to the conduct of the SMS Business; (iv) all of the machinery, equipment, toolsproduction supplies, spare parts, other miscellaneous supplies, and other tangible property of any kind wherever located; g. all leasehold interests and improvements and all machinery, equipment (including all transportation and office equipment), fixtures, trade fixtures, tools, dyes and furniture, computers, furniture, furnishings, automobiles and vehicles, wherever located including, without limitation, the machinery and equipment listed on Schedule A which have been transferred from the Linden facility to the Menasha Operations; h. all rights and claims existing under contracts, leases, insurance policies, licenses, permits, supply and distribution arrangements, sales and purchase agreements and orders, employment and consulting agreements, consignment arrangements, warranties, consents, orders, registrations, privileges, memberships, certificates, approvals or other fixed assets and personal property owned by the Company and its Subsidiaries and related to, used or held for use in connection with the SMS Business (including any similar rights and all hard drivesother agreements, disks, diskettes, tapes or other tangible media), arrangements and in the case of any such items which are leased or licensed by the Company or its Subsidiaries, the Company’s and such Subsidiaries’ leasehold or license interest thereinunderstandings; (v) i. all Contracts lists and records pertaining to which any customers, suppliers, distributors, personnel and agents and all other files, documents, correspondence, plats, architectural plans, drawings and specifications, computer programs and business records of the Company or its Subsidiaries are a party to the extent they are related to the SMS Business, including the SMS Agreements (collectively, the “Assumed Contracts”)every kind and nature; (vi) j. all Intellectual Property owned by the Company and its Subsidiaries and that is related to the SMS Business and was usedclaims, is used or is held for use in the SMS Business (the “Transferred Business Intellectual Property”); (vii) all information technology systemsrefunds, network or telecommunications equipment and softwarecredits, desktop computer software, accounting, finance and database software, general software development and control systems, and tools, environments and other general information technology functionality, in each case that is used in the operation of the SMS Business; (viii) all Permits used in the SMS Business; (ix) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the SMS Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (x) all deposits to the extent made by the Company or its Subsidiaries in connection with the SMS Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to other Assumed Liabilities; (xi) all prepaid assets paid by the Company or its Subsidiaries to the extent in connection with the SMS Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to Assumed Liabilities; (xii) all causes of action, claims, demandschoses in action, rights (including of recovery and rights under or pursuant to warranties, representations of set-off of every kind and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the SMS Business, Purchased Assets or Assumed Liabilitiesnature; (xiii) k. all financial and other books goodwill as a going concern and all other intangible properties; l. all franchises, approvals, permits, licenses, orders, registrations, certificates, variances and similar rights obtained from governments and governmental agencies; m. all books, records, ledgers, files, documents, microfilm and business records (other than Tax Returns) and correspondence, wherever locatedlists, related to the SMS Businessplats, the Purchased Assets architectural plans, drawings and specifications, creative materials, advertising and promotional materials, studies, reports, and other printed or the Assumed Liabilities; (xiv) personnel records for each Transferred SMS Employee (subject to the prior consent of such Transferred SMS Employee to the extent such consent is required by applicable Law in connection with the transfer of such personnel records of such Transferred SMS Employee)written materials; and (xv) n. all other property and assets of the Company and its Subsidiaries that relate to, or are owned by Seller used in the conduct of, the SMS Business, are not Excluded Assets and are not of a category or type described in the foregoing clauses of this Section 2.1(a). (b) The Seller Parties and the Purchaser Parties expressly understand and agree that the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist Menasha Operations on the Asset Closing Date shall be excluded from the Purchased Assets (the “Excluded Assets”): (i) all capital stock or other equity interests in any Person; (ii) all rights arising from Excluded Liabilities; and (iii) the Maintenance Agreements; (iv) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the Maintenance Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (v) all deposits to the extent made by the Company or its Subsidiaries to the extent related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vi) all prepaid assets paid by the Company or its Subsidiaries to the extent in related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the Maintenance Agreements; (viii) all other assets property owned by Seller (and not part of the Company and its Subsidiaries that relate exclusively to, or are Central) used exclusively in the conduct of, the Maintenance CPC Business; and (ix) any assets that are excluded from the Purchased Assets pursuant to Section 3.1(c).