Common use of Purchase and Sale of Assets at the Closing Clause in Contracts

Purchase and Sale of Assets at the Closing. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, EPI shall sell, convey, assign, transfer and deliver to the Acquiror, and the Acquiror shall purchase and acquire from EPI, all of EPI’s right, title and interest in and to the following assets, free and clear of all Encumbrances, other than Permitted Encumbrances (collectively, the “Purchased Assets”): Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission. (a) the rights of EPI and its Affiliates under each of the Contracts set forth on Schedule 2.01(a) of the Elan Disclosure Schedule (the “Assumed Contracts”), subject to the terms and conditions set forth in the Assignment and Assumption Agreement; (b) all Product Books and Records; (c) all Inventory; (d) all Purchased Intellectual Property; (e) all Product Registrations; (f) all Purchased Governmental Permits, to the extent legally transferable; and (g) any other assets set forth on Schedule 2.01(8) of the Elan Disclosure Schedule; provided, however, that notwithstanding anything to the contrary contained herein, EPI shall not be required to transfer physical possession of any Purchased Assets to the Acquiror to the extent any of such Purchased Assets are necessary for EPI to perform its obligations under the Interim Services Agreement (it being understood that (i) EPI will transfer physical possession of such Purchased Assets to the Acquiror as soon as is practicable after such obligations aim fully performed, and (ii) as long as EPI retains physical possession of any Purchased Assets, EPI shall, upon request of the Acquiror, provide the Acquiror with immediate access to and copies of such Purchased Assets (at Acquiror’s expense and provided that such access does not unreasonably interfere with the business or operations of EPI or its Affiliates).

Purchase and Sale of Assets at the Closing. (i) Upon the terms and subject to the conditions set forth in this Agreementherein, at the Closing, EPI Seller shall, and shall cause any of its Affiliates who own or Control Purchased Assets to, sell, convey, assign, assign and transfer and deliver to the AcquirorPurchaser, and the Acquiror Purchaser shall purchase purchase, acquire and acquire accept from EPISeller and its Affiliates, all of EPISeller’s and its Affiliates’ right, title and interest in in, to and to under the following assets(collectively, the “Purchased Assets”), in each case free and clear of all Encumbrances, other than Permitted Encumbrances Encumbrances: (A) the Capital Equipment set forth on Annex 2.1(d)(i)(A); (B) all rights under Seller’s and its Affiliates’ Contracts related to the Manufacturing Platform that are set forth on Annex 2.1(d)(i)(B) and all of Seller’s and its Affiliates’ agreements with donors, including research agreements and informed consents, (collectively, the “Purchased Assets”): Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission. (a) the rights of EPI and its Affiliates under each of the Contracts set forth on Schedule 2.01(a) of the Elan Disclosure Schedule (the “Assumed Contracts”); (C) all Contract Services IP, including the Contract Services IP set forth on Annex 2.1(d)(i)(C); (D) all Records, provided, however, that, subject to the terms and conditions set forth in the Assignment and Assumption Agreement; (b) all Product Books and Records; (c) all Inventory; (d) all Purchased Intellectual Property; (e) all Product Registrations; (f) all Purchased Governmental PermitsSection 11.9, Seller may retain copies of such Records to the extent legally transferablethey relate to Excluded Assets or Excluded Liabilities; and (gE) all claims, counterclaims, credits, causes of action, chooses in action, rights of recovery, and rights of indemnification or setoff against Third Parties and other claims arising out of or relating to the Purchased Assets and all other intangible property rights that relate to the Purchased Assets or any other assets Assumed Liabilities and the right to receive all proceeds and damages therefrom. The Annexes set forth on Schedule 2.01(8) in this Section 2.1 shall be updated by Seller, as necessary to make the Annexes complete as of the Elan Disclosure Schedule; providedClosing Date, however, that notwithstanding anything and Seller shall deliver such updated Annexes to Purchaser no later than five (5) Business Days prior to the contrary contained herein, EPI shall not be required to transfer physical possession of any Purchased Assets to the Acquiror to the extent any of such Purchased Assets are necessary for EPI to perform its obligations under the Interim Services Agreement (it being understood that (i) EPI will transfer physical possession of such Purchased Assets to the Acquiror as soon as is practicable after such obligations aim fully performed, and (ii) as long as EPI retains physical possession of any Purchased Assets, EPI shall, upon request of the Acquiror, provide the Acquiror with immediate access to and copies of such Purchased Assets (at Acquiror’s expense and provided that such access does not unreasonably interfere with the business or operations of EPI or its Affiliates)Closing.

Purchase and Sale of Assets at the Closing. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, EPI shall Seller shall, on behalf of itself and its Subsidiaries, sell, convey, assign, transfer and deliver to the Acquiror, and the Acquiror shall purchase and acquire from EPISeller, all of EPISeller’s right, title and interest in and to the following assets, free and clear of all Encumbrances, other than Permitted Encumbrances (collectively, the “Purchased Assets”): Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission.): (a) the rights of EPI and its Affiliates under each of the Contracts set forth on Schedule 2.01(a) of the Elan Disclosure Schedule (the “Assumed Contracts”), subject to the terms and conditions set forth in the Assignment and Assumption Agreement; (b) all Product Evamist Books and Records; (c) all Evamist Inventory, excluding such Evamist Inventory Acquiror elects to exclude as designated in writing by Acquiror prior to the Closing Date; (d) all Evamist Purchased Intellectual Property; (e) all Evamist Product Registrations, excluding the Evamist FDA Submissions (subject to Section 8.5); (f) all Purchased Evamist Governmental Permits, to the extent legally transferable; andtransferable (excluding the Evamist FDA Submissions, subject to Section 8.5); (g) the Evamist FDA Submissions upon transfer pursuant to Section 8.5; (h) any other assets set forth on Schedule 2.01(8related primarily to the research (including all pre-clinical and clinical studies), development, manufacture, formulation, use, distribution, marketing, sale and promotion of Evamist, provided, however, that: (i) using the [***], the Acquiror, after the Closing, itself or through a contract manufacturer, shall use commercially reasonable efforts to, and subject to the terms of the Elan Disclosure Schedulemanufacturing and supply contract to be entered into by and between the Acquiror and [***], manufacture or cause to be manufactured, on behalf of and for delivery to the Seller up to 150,000 transdermal spray housings by January 1, 2008 and up to 150,000 transdermal spray housings by April 1, 2008, in each case subject to the Seller providing Acquiror a written purchase order for such quantities at least 120 calendar days in advance of the delivery date therefor and agreement to reimburse Acquiror for its actual cost therefor; provided, however, that notwithstanding anything to the contrary contained herein, EPI Acquiror shall not be required to transfer physical possession take any action under this Section 2.1(h)(i) that would interfere with, or be detrimental to, the Evamist Business as conducted by the Acquiror following the Closing, as determined by the Acquiror in good faith; and (ii) with respect to the [***] and [***] located at [***], the Acquiror, for a period of 120 calendar days after the Closing, shall use commercially reasonable efforts to make such equipment available at its then current location for reasonable use on behalf of the Seller in connection with the manufacturing of its testosterone metered dose transdermal spray product, and the parties shall cooperate with respect to the scheduling of such use such that the Seller shall have reasonable access to such equipment as determined by the parties; provided, however, the Acquiror shall not be required to take any action under this Section 2.1(h)(ii) that would interfere with, or be detrimental to, the Evamist Business as conducted by the Acquiror following the Closing, as determined by the Acquiror in good faith; provided, further, the Seller shall use commercially reasonable efforts following the Closing to either purchase a [***] and [***] or find an alternative arrangement with a third party for use of such [***] and [***]; provided, further, that the Seller shall reimburse the Acquiror for any costs incurred by the Acquiror as a result of this Section 2.1(h)(ii). *** Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. In addition, for clarity, the parties agree and acknowledge that, with the exception of the foregoing [***] and [***], the Purchased Assets to shall exclude any assets used by the Acquiror Seller solely in connection with its [***]; and (i) all rights, claims and credits, including all guarantees, warranties, indemnities and similar rights in favor of Seller or any of its Affiliates or any of their respective employees to the extent any of such Purchased Assets are necessary for EPI relating to perform its obligations under the Interim Services Agreement (it being understood that (i) EPI will transfer physical possession of such Purchased Assets to the Acquiror as soon as is practicable after such obligations aim fully performed, and (ii) as long as EPI retains physical possession of any Purchased Assets, EPI shall, upon request of the Acquiror, provide the Acquiror with immediate access to and copies of such Purchased Assets (at Acquiror’s expense and provided that such access does not unreasonably interfere with the business Asset or operations of EPI or its Affiliates)any Assumed Liability.

Purchase and Sale of Assets at the Closing. Upon (a) Subject to the terms and subject to the conditions set forth in of this Agreement, at the Closing, EPI shall sellthe Elan Companies shall, convey, assignjointly and severally, transfer and deliver to the Acquiror or one or more designated Subsidiaries of Acquiror, and the Acquiror or one or more designated Subsidiaries of Acquiror shall purchase acquire and acquire accept from EPIthe Elan Companies, all of EPI’s the Elan Companies' right, title and interest interest, in and to the following assets, assets free and clear of all Encumbrances, other than Permitted Encumbrances (collectively, collectively the “"Purchased Assets”): Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission."): (ai) rights and obligations of the rights of EPI and its Affiliates Elan Companies under each of the Contracts for the development of aerosol formulations, combinations, therapies, comparative trials, and safety studies for the Product or a Current Product Improvement, by way of assignment and/or subcontract, in each case as set forth on Schedule 2.01(a2.01(a)(i) (the "Development Contracts"); it being understood that the rights and obligations of the Elan Disclosure Schedule (Companies under the “Assumed Contracts”), subject Development Contracts are to be transferred at the Closing from the Elan Companies to the terms Acquiror, and conditions set forth in the Assignment Elan Companies retain all rights to all data, information and Assumption Agreementany intellectual property for use outside of the Territory; (bii) rights of the Elan Companies under each of the Contracts relating to the license of intellectual property and the performance of related research services, by way of assignment and/or sublicense, in each case as set forth on Schedule 2.01(a)(ii) (the "Product License Agreements"); it being understood that the rights and obligations of the Elan Companies under the Product License Agreements are to be divided at the Closing between the Elan Companies and the Acquiror so that Acquiror acquires and assumes all such rights and obligations within the Territory, and the Elan Companies retain all such rights and obligations for use outside of the Territory; (iii) all rights of the Elan Companies under the Contracts for distribution of the Product in the Territory, by way of assignment and/or subcontract, in each case as set forth on Schedule 2.01(a)(iii) (the "Distribution Contracts" and, together with the Development Contracts, the Product License Agreements, the Contracts responsive to Section 2.01(a)(xii), the Plant Contracts and the Supply Contracts, the "Assumed Contracts"); (iv) all Marketing Materials; (v) all Product Books and Records; (cvi) all Finished Product Inventory and Finished Non-Product Inventory; (dvii) the license and/or ownership rights to all Purchased Product Intellectual Property, as set forth in the License Agreement, the Trademark Assignment Agreement, the Canadian Trademark Assignment Agreement and the Patent Assignment Agreement; (eviii) all Copyrights; (ix) all Product Registrations; (fx) all Purchased legally transferable rights under Governmental Permits, ; (xi) all rights related to any prepaid expenses of or predominantly related to the extent legally transferableBusiness; (xii) any other assets and Contracts set forth on Schedule 2.01(a)(xii); and (gxiii) the following assets (the "Plant Assets"): (A) the Plant; (B) security deposits and assignments of all security deposits, if any, with respect to the Plant (but not the Plant Employees), leases, lease guaranties, assignment of leases and lease guaranties; (C) all fixed assets, fixtures, vehicles, trailers, leasehold improvements, tooling, machinery, equipment, furniture, furnishings, appliances, signs, tools, and other personal property and all plumbing, heating, air conditioning, security, mechanical, electrical and all other systems and equipment and all component parts thereof, owned by Elan Companies and located in, or attached to, or used at the Plant (collectively, "Plant Personal Property"); (D) all service contracts, maintenance contracts, operating contracts, listing agreements, commission agreements, equipment leases, warranties and/or guaranties, agreements relating to the construction of any other assets unfinished improvements and like contracts and agreements necessary for the operation of the Plant or relating predominantly to the Plant, including those listed on Schedule 2.01(a)(xiii)(D) (collectively, "Plant Contracts") and the assignments or subcontract of all Plant Contracts; (E) all Plant Software Products, Plant Embedded Controls and Plant Custom Software (including documentation and related object and source codes); (F) all legally transferable Governmental Permits necessary for the operation of the Plant; (G) all manufacturing, warehouse and office supplies used predominantly in the Plant; (H) the Contracts for the supply of raw materials and relating predominantly to the manufacturing, packaging, labeling or storage of Product, by way of assignment or subcontract, in each case as set forth on Schedule 2.01(82.01(a)(xiii)(H) (the "Supply Contracts"); (I) all rights related to any prepaid expenses of or related predominantly to the Plant; (J) all Manufacturing Process and Plant Books and Records; (K) all Manufacturing Process and Plant Registrations; (L) (a) preliminary, final and proposed building plans and specifications (including "as built" plans and drawings) and any and all other plans and specifications for the Plant, (b) surveys, grading plans, topographical maps, architectural and structural drawings and engineering, soils, seismic, environmental, geologic and architectural reports, studies and tests relating to the Plant, and (c) lock combinations, keys, passwords, operating manuals and technical data relating to the Plant ((a), (b), and (c) collectively, "Plant Reports and Plans"); (M) all legally transferable rights under (a) licenses, permits, approvals, including building inspection approvals, variances, special use permits, certificates of occupancy, subdivision maps and entitlements issued, approved or granted by any Governmental or Regulatory Authority necessary for the operation of the Plant, (b) development rights, covenants, conditions and restrictions, reciprocal easement agreements and rights, area easement agreements and rights and other common or planned development agreements and rights necessary for the operation of the Plant and (c) other Governmental Permits relating to the Plant ((a), (b) and (c) collectively, "Plant Licenses and Permits"); (N) all Raw Material Product Inventory, Raw Material Non-Product Inventory, Work-in-Progress Product Inventory and Work-in-Progress Non-Product Inventory; and (O) all other Assets or Properties and Contracts necessary for the operation or ownership of the Plant and/or the Plant Personal Property, except as set forth on Schedule 2.01(a)(xiii)(M). (b) Notwithstanding anything to the contrary contained in this Agreement, from and after the Closing, the Elan Companies shall retain all of their right, title and interest in and to the following assets (the "Excluded Assets"): (i) all cash and cash equivalents of the Elan Disclosure ScheduleCompanies or any of their respective Affiliates; (ii) all Accounts Receivables of the Elan Companies or any of their respective Affiliates; (iii) the Corporate Names, except as expressly provided in Section 8.07; and (iv) any refund or credit of Taxes attributable to any Pre-Closing Tax Period. (c) Notwithstanding anything to the contrary contained in this Agreement, the Elan Companies may retain, at their expense, archival copies of all Assumed Contracts, Plant Contracts, Supply Contracts, Books and Records, Marketing Materials and other documents or materials conveyed hereunder; provided, however, that notwithstanding anything to the contrary contained herein, EPI Elan Companies shall not be required to transfer physical possession of any Purchased Assets to the Acquiror to the extent any of maintain such Purchased Assets are necessary for EPI to perform its obligations under the Interim Services Agreement (it being understood that (i) EPI will transfer physical possession of such Purchased Assets to the Acquiror as soon as is practicable after such obligations aim fully performed, and (ii) as long as EPI retains physical possession of any Purchased Assets, EPI shall, upon request of the Acquiror, provide the Acquiror with immediate access to and copies of such Purchased Assets (at Acquiror’s expense and provided that such access does not unreasonably interfere items in accordance with the business or operations provisions of EPI or its Affiliates)Section 8.06.

Purchase and Sale of Assets at the Closing. Upon (a) Subject to the terms and subject to the conditions set forth in of this Agreement, at the Closing, EPI shall sellthe Elan Companies shall, convey, assignjointly and severally, transfer and deliver to the Acquiror or one or more designated Subsidiaries of Acquiror, and the Acquiror or one or more designated Subsidiaries of Acquiror shall purchase acquire and acquire accept from EPIthe Elan Companies, all of EPI’s the Elan Companies' right, title and interest interest, in and to the following assets, assets free and clear of all Encumbrances, other than Permitted Encumbrances (collectively, collectively the “"Purchased Assets”): Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission."): (ai) rights and obligations of the rights of EPI and its Affiliates Elan Companies under each of the Contracts for the development of aerosol formulations, combinations, therapies, comparative trials, and safety studies for the Product or a Current Product Improvement, by way of assignment and/or subcontract, in each case as set forth on Schedule 2.01(a2.01(a)(i) (the "Development Contracts"); it being understood that the rights and obligations of the Elan Disclosure Schedule (Companies under the “Assumed Contracts”), subject Development Contracts are to be transferred at the Closing from the Elan Companies to the terms Acquiror, and conditions set forth in the Assignment Elan Companies retain all rights to all data, information and Assumption Agreementany intellectual property for use outside of the Territory; (bii) rights of the Elan Companies under each of the Contracts relating to the license of intellectual property and the performance of related research services, by way of assignment and/or sublicense, in each case as set forth on Schedule 2.01(a)(ii) (the "Product License Agreements"); it being understood that the rights and obligations of the Elan Companies under the Product License Agreements are to be divided at the Closing between the Elan Companies and the Acquiror so that Acquiror acquires and assumes all such rights and obligations within the Territory, and the Elan Companies retain all such rights and obligations for use outside of the Territory; (iii) all rights of the Elan Companies under the Contracts for distribution of the Product in the Territory, by way of assignment and/or subcontract, in each case as set forth on Schedule 2.01(a)(iii) (the "Distribution Contracts" and, together with the Development Contracts, the Product License Agreements, the Contracts responsive to Section 2.01(a)(xii), the Plant Contracts and the Supply Contracts, the "Assumed Contracts"); (iv) all Marketing Materials; (v) all Product Books and Records; (cvi) all Finished Product Inventory and Finished Non-Product Inventory; (dvii) the license and/or ownership rights to all Purchased Product Intellectual Property, as set forth in the License Agreement, the Trademark Assignment Agreement, the Canadian Trademark Assignment Agreement and the Patent Assignment Agreement; (eviii) all Copyrights; (ix) all Product Registrations; (fx) all Purchased legally transferable rights under Governmental Permits, ; (xi) all rights related to any prepaid expenses of or predominantly related to the extent legally transferableBusiness; (xii) any other assets and Contracts set forth on Schedule 2.01(a)(xii); and (gxiii) the following assets (the "Plant Assets"): (A) the Plant; (B) security deposits and assignments of all security deposits, if any, with respect to the Plant (but not the Plant Employees), leases, lease guaranties, assignment of leases and lease guaranties; (C) all fixed assets, fixtures, vehicles, trailers, leasehold improvements, tooling, machinery, equipment, furniture, furnishings, appliances, signs, tools, and other personal property and all plumbing, heating, air conditioning, security, mechanical, electrical and all other systems and equipment and all component parts thereof, owned by Elan Companies and located in, or attached to, or used at the Plant (collectively, "Plant Personal Property"); (D) all service contracts, maintenance contracts, operating contracts, listing agreements, commission agreements, equipment leases, warranties and/or guaranties, agreements relating to the construction of any other assets unfinished improvements and like contracts and agreements necessary for the operation of the Plant or relating predomi- nantly to the Plant, including those listed on Schedule 2.01(a)(xiii)(D) (collectively, "Plant Contracts") and the assignments or subcontract of all Plant Contracts; (E) all Plant Software Products, Plant Embedded Controls and Plant Custom Software (including documentation and related object and source codes); (F) all legally transferable Governmental Permits necessary for the operation of the Plant; (G) all manufacturing, warehouse and office supplies used predominantly in the Plant; (H) the Contracts for the supply of raw materials and relating predominantly to the manufacturing, packaging, labeling or storage of Product, by way of assignment or subcontract, in each case as set forth on Schedule 2.01(82.01(a)(xiii)(H) (the "Supply Contracts"); (I) all rights related to any prepaid expenses of or related predominantly to the Plant; (J) all Manufacturing Process and Plant Books and Records; (K) all Manufacturing Process and Plant Registrations; (L) (a) preliminary, final and proposed building plans and specifications (including "as built" plans and drawings) and any and all other plans and specifications for the Plant, (b) surveys, grading plans, topographical maps, architectural and structural drawings and engineering, soils, seismic, environmental, geologic and architectural reports, studies and tests relating to the Plant, and (c) lock combinations, keys, passwords, operating manuals and technical data relating to the Plant ((a), (b), and (c) collectively, "Plant Reports and Plans"); (M) all legally transferable rights under (a) licenses, permits, approvals, including building inspection approvals, variances, special use permits, certificates of occupancy, subdivision maps and entitlements issued, approved or granted by any Governmental or Regulatory Authority necessary for the operation of the Plant, (b) development rights, covenants, conditions and restrictions, reciprocal easement agreements and rights, area easement agreements and rights and other common or planned development agreements and rights necessary for the operation of the Plant and (c) other Governmental Permits relating to the Plant ((a), (b) and (c) collectively, "Plant Licenses and Permits"); (N) all Raw Material Product Inventory, Raw Material Non-Product Inventory, Work-in-Progress Product Inventory and Work-in-Progress Non-Product Inventory; and (O) all other Assets or Properties and Contracts necessary for the operation or ownership of the Plant and/or the Plant Personal Property, except as set forth on Schedule 2.01(a)(xiii)(M). (b) Notwithstanding anything to the contrary contained in this Agreement, from and after the Closing, the Elan Companies shall retain all of their right, title and interest in and to the following assets (the "Excluded Assets"): (i) all cash and cash equivalents of the Elan Disclosure ScheduleCompanies or any of their respective Affiliates; (ii) all Accounts Receivables of the Elan Companies or any of their respective Affiliates; (iii) the Corporate Names, except as expressly provided in Section 8.07; and (iv) any refund or credit of Taxes attributable to any Pre-Closing Tax Period. (c) Notwithstanding anything to the contrary contained in this Agreement, the Elan Companies may retain, at their expense, archival copies of all Assumed Contracts, Plant Contracts, Supply Contracts, Books and Records, Marketing Materials and other documents or materials conveyed hereunder; provided, however, that notwithstanding anything to the contrary contained herein, EPI Elan Companies shall not be required to transfer physical possession of any Purchased Assets to the Acquiror to the extent any of maintain such Purchased Assets are necessary for EPI to perform its obligations under the Interim Services Agreement (it being understood that (i) EPI will transfer physical possession of such Purchased Assets to the Acquiror as soon as is practicable after such obligations aim fully performed, and (ii) as long as EPI retains physical possession of any Purchased Assets, EPI shall, upon request of the Acquiror, provide the Acquiror with immediate access to and copies of such Purchased Assets (at Acquiror’s expense and provided that such access does not unreasonably interfere items in accordance with the business or operations provisions of EPI or its Affiliates)Section 8.06.

Purchase and Sale of Assets at the Closing. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, EPI shall Seller shall, on behalf of itself and its Subsidiaries, sell, convey, assign, transfer and deliver to the Acquiror, and the Acquiror shall purchase and acquire from EPISeller, all of EPISeller’s right, title and interest in and to the following assets, free and clear of all Encumbrances, other than Permitted Encumbrances (collectively, the “Purchased Assets”): Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission.): (a) the rights of EPI and its Affiliates under each of the Contracts set forth on Schedule 2.01(a) of the Elan Disclosure Schedule (the “Assumed Contracts”), subject to the terms and conditions set forth in the Assignment and Assumption Agreement; (b) all Product Evamist Books and Records; (c) all Evamist Inventory, excluding such Evamist Inventory Acquiror elects to exclude as designated in writing by Acquiror prior to the Closing Date; (d) all Evamist Purchased Intellectual Property; (e) all Evamist Product Registrations, excluding the Evamist FDA Submissions (subject to Section 8.5); (f) all Purchased Evamist Governmental Permits, to the extent legally transferable; andtransferable (excluding the Evamist FDA Submissions, subject to Section 8.5); (g) the Evamist FDA Submissions upon transfer pursuant to Section 8.5; (h) any other assets set forth on Schedule 2.01(8related primarily to the research (including all pre-clinical and clinical studies), development, manufacture, formulation, use, distribution, marketing, sale and promotion of Evamist, provided, however, that: (i) using the [***], the Acquiror, after the Closing, itself or through a contract manufacturer, shall use commercially reasonable efforts to, and subject to the terms of the Elan Disclosure Schedulemanufacturing and supply contract to be entered into by and between the Acquiror and [***], manufacture or cause to be manufactured, on behalf of and for delivery to the Seller up to 150,000 transdermal spray housings by January 1, 2008 and up to 150,000 transdermal spray housings by April 1, 2008, in each case subject to the Seller providing Acquiror a written purchase order for such quantities at least 120 calendar days in advance of the delivery date therefor and agreement to reimburse Acquiror for its actual cost therefor; provided, however, that notwithstanding anything to the contrary contained herein, EPI Acquiror shall not be required to transfer physical possession take any action under this Section 2.1(h)(i) that would interfere with, or be detrimental to, the Evamist Business as conducted by the Acquiror following the Closing, as determined by the Acquiror in good faith; and (ii) with respect to the [***] and [***] located at [***], the Acquiror, for a period of 120 calendar days after the Closing, shall use commercially reasonable efforts to make such equipment available at its then current location for reasonable use on behalf of the Seller in connection with the manufacturing of its testosterone metered dose transdermal spray product, and the parties shall cooperate with respect to the scheduling of such use such that the Seller shall have reasonable access to such equipment as determined by the parties; provided, however, the Acquiror shall not be required to take any action under this Section 2.1(h)(ii) that would interfere with, or be detrimental to, the Evamist Business as conducted by the Acquiror following the Closing, as determined by the Acquiror in good faith; provided, further, the Seller shall use commercially reasonable efforts following the Closing to either purchase a [***] and [***] or find an alternative arrangement with a third party for use of such [***] and [***]; provided, further, that the Seller shall reimburse the Acquiror for any costs incurred by the Acquiror as a result of this Section 2.1(h)(ii). In addition, for clarity, the parties agree and acknowledge that, with the exception of the foregoing [***] and [***], the Purchased Assets to shall exclude any assets used by the Acquiror Seller solely in connection with its [***]; and (i) all rights, claims and credits, including all guarantees, warranties, indemnities and similar rights in favor of Seller or any of its Affiliates or any of their respective employees to the extent any of such Purchased Assets are necessary for EPI relating to perform its obligations under the Interim Services Agreement (it being understood that (i) EPI will transfer physical possession of such Purchased Assets to the Acquiror as soon as is practicable after such obligations aim fully performed, and (ii) as long as EPI retains physical possession of any Purchased Assets, EPI shall, upon request of the Acquiror, provide the Acquiror with immediate access to and copies of such Purchased Assets (at Acquiror’s expense and provided that such access does not unreasonably interfere with the business Asset or operations of EPI or its Affiliates)any Assumed Liability.