Common use of Transferred Assets and Excluded Assets Clause in Contracts

Transferred Assets and Excluded Assets. (a) Immediately prior to the Closing, the Seller and the Company will, and Parent will cause the Parent Designated Affiliates to, execute and deliver the ▇▇▇▇ of Sale and Assignment Agreement, the Assumption Agreement, the Assignment of Leases, the Cochlear Patent Assignment and the Cochlear Trademark Assignment, pursuant to which the Seller will assign, convey, transfer and deliver, or cause to be assigned, conveyed, transferred and delivered, to the Company, and the Company will acquire and assume, all of the Seller’s and the Parent Designated Affiliates’ right, title and interest, direct or indirect, in, to and under all the Transferred Assets, in each case free and clear of any Encumbrances. The “Transferred Assets” means (x) whether or not listed in clause (y) of this Section 2.02(a), except for Patents, Assigned Names and Marks and Transferred IP Agreements, any and all assets, properties and rights of the Seller and the Parent Designated Affiliates of every nature, kind and description, whether tangible or intangible, real, personal or mixed, accrued or contingent (including goodwill), wherever located and whether now existing or hereafter acquired prior to the Closing Date, Primarily related to, or Primarily used or held for use in connection with the Transferred Business, whether or not carried or reflected on or specifically referred to in the Seller’s books or financial statements, other than the Excluded Assets plus (y) all of the Seller’s and the Parent Designated Affiliates’ right, title and interest in, to and under the following, other than the Excluded Assets: 12 (i) all the Transferred Contracts; (ii) all the Transferred Intellectual Property; (iii) all the Receivables; (iv) originals of all Books and Records that are associated with or employed by the Seller or the Parent Designated Affiliates solely in the conduct of the Transferred Business and copies of all Books and Records of the Seller that are associated with or employed by the Seller or the Parent Designated Affiliates in the conduct of the Transferred Business, but not solely so; (v) all Personal Property; (vi) all rights in respect of the Leased Real Property; (vii) all sales and promotional literature and other sales-related materials, in each case, Primarily related to, used or held for use in the Transferred Business; (viii) to the extent transferable in accordance with applicable Law, all Permits; (ix) all goodwill, going concern value and other intangible assets of the Seller or the Parent Designated Affiliates to the extent related to the Transferred Business, including any goodwill associated with any of the Assigned Names and Marks; (x) all Claims against any Person to the extent related to the Transferred Business, the Transferred Assets or the Assumed Liabilities, pertaining to, arising out of or inuring to the benefit of any of the Seller or the Parent Designated Affiliates including (A) all rights under any Transferred Contract, including all rights to receive payment for products sold and services rendered thereunder, to receive goods and services thereunder, to assert Claims and to take other rightful actions in respect of breaches, defaults and other violations thereof, (B) all rights under the Transferred IP Agreements, including all rights to ▇▇▇ and recover damages for past, present and future infringement, dilution, misappropriation, violation, unlawful imitation or breach thereof, and all rights of priority and protection of interests therein under the laws of any jurisdiction and (C) all rights under guarantees, warranties, indemnities to the extent arising from or related to the Transferred Business, the Transferred Assets or the Assumed Liabilities; (xi) the insurance policy of the Seller its Affiliates set forth on Schedule 2.02(a)(xi) and all rights related to the Transferred Business with respect thereto, including all insurance recoveries thereunder and rights to assert Claims with respect to any such insurance recoveries; (xii) all Inventory; (xiii) all Prepaid Items; 13

Transferred Assets and Excluded Assets. (a) Immediately prior to the Closing, the Seller and the Company will, and Parent will cause the Parent Designated Affiliates to, execute and deliver the ▇▇▇▇ of Sale and Assignment Agreement, the Assumption Agreement, the Assignment of Leases, the Cochlear Patent Assignment and the Cochlear Trademark Assignment, pursuant to which the Seller will assign, convey, transfer and deliver, or cause to be assigned, conveyed, transferred and delivered, to the Company, and the Company will acquire and assume, all of the Seller’s and the Parent Designated Affiliates’ right, title and interest, direct or indirect, in, to and under all the Transferred Assets, in each case free and clear of any Encumbrances. The “Transferred Assets” means (x) whether or not listed in clause (y) of this Section 2.02(a), except for Patents, Assigned Names and Marks and Transferred IP Agreements, any and all assets, properties and rights of the Seller and the Parent Designated Affiliates of every nature, kind and description, whether tangible or intangible, real, personal or mixed, accrued or contingent (including goodwill), wherever located and whether now existing or hereafter acquired prior to the Closing Date, Primarily related to, or Primarily used or held for use in connection with the Transferred Business, whether or not carried or reflected on or specifically referred to in the Seller’s books or financial statements, other than the Excluded Assets plus (y) all of the Seller’s and the Parent Designated Affiliates’ right, title and interest in, to and under the following, other than the Excluded Assets: 12 (i) all the Transferred Contracts; (ii) all the Transferred Intellectual Property; (iii) all the Receivables; (iv) originals of all Books and Records that are associated with or employed by the Seller or the Parent Designated Affiliates solely in the conduct of the Transferred Business and copies of all Books and Records of the Seller that are associated with or employed by the Seller or the Parent Designated Affiliates in the conduct of the Transferred Business, but not solely so; (v) all Personal Property; (vi) all rights in respect of the Leased Real Property; (vii) all sales and promotional literature and other sales-related materials, in each case, Primarily related to, used or held for use in the Transferred Business; (viii) to the extent transferable in accordance with applicable Law, all Permits; (ix) all goodwill, going concern value and other intangible assets of the Seller or the Parent Designated Affiliates to the extent related to the Transferred Business, including any goodwill associated with any of the Assigned Names and Marks; (x) all Claims against any Person to the extent related to the Transferred Business, the Transferred Assets or the Assumed Liabilities, pertaining to, arising out of or inuring to the benefit of any of the Seller or the Parent Designated Affiliates including (A) all rights under any Transferred Contract, including all rights to receive payment for products sold and services rendered thereunder, to receive goods and services thereunder, to assert Claims and to take other rightful actions in respect of breaches, defaults and other violations thereof, (B) all rights under the Transferred IP Agreements, including all rights to ▇▇▇ and recover damages for past, present and future infringement, dilution, misappropriation, violation, unlawful imitation or breach thereof, and all rights of priority and protection of interests therein under the laws of any jurisdiction and (C) all rights under guarantees, warranties, indemnities to the extent arising from or related to the Transferred Business, the Transferred Assets or the Assumed Liabilities; (xi) the insurance policy of the Seller its Affiliates set forth on Schedule 2.02(a)(xi) and all rights related to the Transferred Business with respect thereto, including all insurance recoveries thereunder and rights to assert Claims with respect to any such insurance recoveries; (xii) all Inventory; (xiii) all Prepaid Items; 13: