(a)        the Tangible Property set forth on Schedule 2.1(a)(i) (collectively, the “Business Tangible Property”); provided, that with respect to Business Tangible Property containing the software set forth on Schedule 2.1(a)(ii) that is licensed from third parties and cannot be assigned to Buyer absent consent of the licensor thereof (the “Restricted Software”), the physical transfer of such Business Tangible Property from the applicable Transferring Party to Buyer shall occur at the Closing, but legal title to such Business Tangible Property shall not transfer to Buyer until the earlier of the time specified in the Transition Services Agreement or the date of expiration or termination of the Transition Services Agreement;

    (b)        all Specified Inventory (whether located at a business facility, in the possession of any contract manufacturer, or at any other location in the supply chain, of any Seller or any of its Affiliates) owned by any Seller or an Affiliate of any Seller (the “Business Inventory”);

    (c)        (i) the Contracts set forth on Schedule 2.1(c), (ii) any Exclusive Service Contracts (including any renewals of existing Exclusive Service Contracts) that any Seller or an Affiliate of any Seller enters into with a third party during the period between the date hereof and the Closing (the “New Exclusive Service Contracts”), (iii) any confidentiality or non-disclosure agreements entered into by any Seller or any of its Affiliates in connection with the sale of the Business (other than the Confidentiality Agreement) and (iv) any other Contract, the entry into of which Buyer consents to in accordance with Section 7.7(a) (which additional Contracts shall be set forth on updated Schedule 2.1(c) delivered at Closing) (together with the Contracts listed under clauses (i) and (ii) above, collectively, the “Business Contracts”);

    (d)        (i) the Intellectual Property Assets owned by any Seller or an Affiliate of any Seller set forth on Schedule 2.1(d) and (ii) to the extent not covered by Section 2.1(d)(i), the Intellectual Property Assets owned by such Seller and/or its Affiliates that are (x) used in Products as of the Closing Date and (y) have never been used in any other commercial products of any Seller and/or its Affiliates (including, for the sake of clarity, the EMEA Sellers), in each case including all Intellectual Property Rights therein and the goodwill associated therewith and all rights to ▇▇▇ for past, present or future infringement and to collect and retain all damages and profits relating to the foregoing (the assets and rights included in clauses (i) and (ii), the “Business Intellectual Property”; for the sake of clarity, no Prior Existing IP shall be deemed to be Business Intellectual Property); provided, that in the case of Intellectual Property Assets and Intellectual Property Rights that constitute patents, patent applications, domain names and websites, inventions and/or invention disclosures, only those patents, patent applications, domain names and websites, inventions and invention disclosures specifically listed on Schedule 2.1(d) shall constitute Business Intellectual Property and be assigned;

    (e)        the Prior Existing IP, together with all Intellectual Property Rights therein and the goodwill associated therewith and all rights to ▇▇▇ for past, present or future infringement and to collect and retain all damages and profits relating to the foregoing (“Prior IP”); provided, that, subject to Section 4.5, none of this Section 2.1(e), the assignment of the Prior IP to Buyer or anything else in this Agreement shall obligate any Seller or any of its Affiliates or representatives to (x) create, recreate, improve, prepare, develop or acquire any Intellectual Property Assets or Intellectual Property Rights that would otherwise be, or (y) document, create any physical or electronic embodiment not then existing of, or otherwise put into tangible form, any Prior IP, other than making copies of existing documents or files for delivery to Buyer.

    (f)        without prejudice to (x) Section 2.1(d) or 2.1(e) (with respect to the right to ▇▇▇ for past, present or future infringement, and to collect and retain all damages and profits relating to the Business Intellectual Property or the Prior IP in respect of such infringement) and (y) Section 2.1(i), all claims, demands, deposits, causes of action, choses in action, rights of recovery, rights of set-off and rights of recoupment, in each case relating exclusively to the operation of the Business after the Closing by Buyer (other than those related to Excluded Assets);

    (g)        all refunds and rebates relating exclusively to the operation of the Business after the Closing by Buyer (other than those excluded pursuant to Section 2.2(e));

    (h)        all sales literature, promotional literature and any other sales, advertising, marketing or promotional materials of any Seller or an Affiliate of any Seller that relate exclusively to the Products;

    (i)        all rights under Business Contracts to the extent that such rights relate to non-competition, confidentiality or non-solicitation obligations, whether relating to periods prior to or following the Closing;

    (j)        all rights of any Seller or an Affiliate of any Seller under or pursuant to all warranties, representations and guarantees made by suppliers, manufacturers and contractors relating directly to (i) Business Inventory, (ii) Product returns purchased by Buyer after Closing pursuant to Section 9.10, (iii) the Business Tangible Property or (iv) products in respect of which Buyer or its Affiliates are obligated to fulfill warranty obligations pursuant to the Master Purchase Agreement; and

    (k)        the information set out in Schedule 5.12(a) and copies of all general and financial records, ledgers, sales invoices, files, books and documents, correspondence and other files and records, including customer lists and sales records, of any Seller or an Affiliate of any Seller pertaining exclusively to the Products or the assets and rights transferred to Buyer pursuant to the above paragraphs (a) through (j) of this Section 2.1 (other than those excluded pursuant to Sections 2.2(i), 2.2(l) and/or 2.2(n)).

    (a)        all cash and cash equivalents or similar investments, including checking accounts, bank accounts, lock box numbers, marketable securities, commercial paper, certificates of deposit and other bank deposits, and treasury bills;

    (b)        all insurance policies and all rights of every nature (including proceeds) under or arising out of such policies;

    (c)        all Contracts to which any Seller or any of its Affiliates is a party other than the Business Contracts;

    (d)        without prejudice to Buyer’s rights pursuant to Section 7.10, all Accounts Receivable;

    (e)        subject to (x) Sections 2.1(d), 2.1(e), 2.1(f) and 2.1(g) (with respect to the right to ▇▇▇ for past, present or future infringement, and to collect and retain all damages and profits relating to the Business Intellectual Property and the Prior IP in respect of such infringement) and (y) Section 2.1(i), all claims, demands, deposits, refunds, rebates, causes of action, choses in action, rights of recovery, rights of set-off and rights of recoupment, and all claims for refunds or rebates of Taxes, in any case related to periods (or portions thereof) ending on or prior to the Effective Time, and other governmental charges and the benefit of net operating loss carryforwards, carrybacks or other credits of any Seller and/or any of its Affiliates;

    (f)        all prepaid charges, expenses, sums and fees;

    (g)        all Intellectual Property Assets owned, acquired, developed or licensed by any Seller or any of its Affiliates other than the Business Intellectual Property and the Prior IP;

    (h)        without prejudice to Section 9.13(b), all proprietary or confidential business or technical information, records and policies that relate generally to any Seller and/or its Affiliates and/or are not used exclusively in their operation of the Business, including organization manuals, strategic plans and Tax records and related information;

    (i)        all personnel records relating to the Business Employees other than the information set forth in Section 2.1(k) and other records that any Seller or its Affiliates is required by Law to retain in its possession or is not permitted under Law to provide to Buyer;

    (j)        all rights in connection with, and assets of, any Nortel Employee Plan;

    (k)        all rights of any Seller and/or its Affiliates under this Agreement or any other Transaction Document or in respect of the Transactions;

    (l)        all records prepared in connection with the sale of the Business;

    (m)        without prejudice to Section 9.13(b), all books, records, accounts, ledgers, files, documents, correspondence, studies, reports and other printed or written materials related to any Excluded Assets or Excluded Liabilities;

    (n)        all of the rights and claims of the U.S. Debtors available to the U.S. Debtors under the U.S. Bankruptcy Code, of whatever kind or nature, as set forth in Chapter 5 of the U.S. Bankruptcy Code and any other applicable provisions of the U.S. Bankruptcy Code, and any related claims and actions arising under Chapter 5 or such provisions by operation of law or otherwise, including any and all proceeds of the foregoing;

    (o)        all of the rights and claims of Canadian Debtors of whatever kind of nature not expressly included in the Acquired Assets, including any and all proceeds of the foregoing; and

    (p)        all other properties, rights and assets of any Seller and/or its Affiliates that are not used by them exclusively in the operation of the Business.

    (a)        all Liabilities under or arising from the Business Contracts, other than (i) any Liability for Cure Costs (in the case of Assumed and Assigned Contracts) or (ii) any Liability arising under any Business Contract (other than an Assumed and Assigned Contract) as a result of a breach, default or wrongful failure on the part of any Seller or its Affiliates to perform any covenant or obligation under such Business Contract required to be performed by it prior to the Closing;

    (b)        all Liabilities to or in respect of (i) any Transferring Employee, including their employment (or termination of employment) by Buyer, any Buyer Entity or any Affiliate of Buyer, with respect to periods from and after such Transferring Employee’s Employment Transfer Date and (ii) any Buyer Employee Plan or future employee benefit plan of Buyer or its Affiliates, including for severance or other obligations to Transferring Employees arising following such Transferring Employees’ Employment Transfer Date;

    (c)        all Liabilities for or in respect of Taxes (other than Income Taxes) (i) that are the responsibility of Buyer pursuant to Section 9.1 or (ii) in connection with the operation of the Business or in respect of the Acquired Assets with respect to periods (or portions thereof) beginning on or after the Effective Time;

    (d)        all Liabilities with respect to defective Product claims and product liability claims and causes of action arising with respect to (i) products shipped or sold by or on behalf of Buyer or its Affiliates from or after the Closing and (ii) Product returns purchased by Buyer pursuant to Section 9.10 (but only to the extent of Buyer’s obligation to purchase such Product returns pursuant to Section 9.10); and

    (e)        all Liabilities relating to Buyer’s and/or its Affiliates’ ownership or use of the Acquired Assets, or the conduct or operation of the Business, or the activities of Buyer and/or its Affiliates in connection with the Acquired Assets or the Business after the Closing.

    (a)        all Liabilities to or in respect of (i) any Transferring Employee, including their employment by any Seller Entity or any Affiliate of any Seller, in each case with respect to periods prior to such Transferring Employee’s Employment Transfer Date, and (ii) any Nortel Employee Plan or prior employee benefit plan of any Seller or its Affiliates, including for severance or other obligations to Transferring Employees arising prior to such Transferring Employees’ Employment Transfer Date or as a result of the consummation of the Transactions;

    (b)        except as set forth in Section 2.3(c), all Liabilities of any Seller or its Affiliates for Taxes, including (i) Taxes that are the responsibility of any Seller pursuant to Section 9.1 and (ii) all Taxes arising out of the operations of the Business (including ownership of the Acquired Assets) with respect to transactions occurring prior to or periods (or portions thereof) ending prior to the Effective Time;

    (c)        all Liabilities of any Seller or its Affiliates under this Agreement or any other Transaction Document;

    (d)        all Liabilities for legal, accounting and audit fees (except as provided in Section 9.15) and any other expenses incurred by any Seller or any of its Affiliates in connection with this Agreement, any other Transaction Document or consummation of the Transactions, including any fees, expenses or other payments incurred or owed by any Seller or any of its Affiliates to any agent, broker, investment banker or other firm or Person retained or employed by any Seller or any of its Affiliates in connection with the Transactions;

    (e)        all Liabilities of any Seller or any of its Affiliates, to the extent relating to the Excluded Assets;

    (f)        except as provided in Section 2.3(d) and/or as specified in the Master Purchase Agreement, all Liabilities with respect to defective product claims and product liability claims and causes of action arising with respect to Products shipped prior to Closing;

    (g)        all Liabilities under or arising from the VSS Products with respect to periods prior to Closing Date, including claims relating to warranty obligations or other Liabilities under or arising from Contracts that have been entered into prior to the Closing Date with respect to VSS Products; provided, that Buyer and the other Buyer Entities shall be responsible for all Liabilities with respect to any implementation of the features or functionality of the VSS Products in whatsoever manner implemented by Buyer or its Affiliates, in accordance with Section 2.3(e), from and after the Closing;

    (h)        all Liabilities relating to any Seller’s and/or its Affiliates’ ownership or use of the Acquired Assets, or the conduct or operation of the Business, or the activities of any Seller and/or its Affiliates in connection with the Acquired Assets or the Business prior to the Closing, to the extent not an Assumed Liability;

    (i)        all Liabilities in respect of any applicable Bulk Sales Laws as a result of the actions contemplated by Section 7.5; and

    (j)        all Liabilities relating to any other assets, operations, products, businesses or activities of any Seller and/or its Affiliates that are not part of the Business.

    (a)        To the extent that any Assumed and Assigned Contract is subject to a Cure Cost, the applicable Seller shall, or shall cause the applicable Seller Entity to, (x) notify Buyer of the amount of such Cure Cost and (y) within ten Business Days of the determination of such Cure Cost by the U.S. Bankruptcy Court, directly pay or otherwise provide for payment of such Cure Cost as required by the U.S. Bankruptcy Code or other applicable Law.

    (b)        Prior to the entry of the U.S. Sale Order, Buyer shall provide adequate assurance of its future performance under each Assumed and Assigned Contract to the parties thereto (other than the U.S. Debtors) as reasonably necessary to satisfy Section 365(f)(2)(B) of the U.S. Bankruptcy Code.

    (c)        Except as may be required by the U.S. Bankruptcy Court, NNI shall not, and shall cause the other U.S. Debtors not to, reject any Assumed and Assigned Contract.

    (a)        When references are made in this Agreement to Sellers causing their Affiliate(s) or other Seller Entities to undertake (or to not undertake) certain actions, or agreements are being made on behalf of certain Affiliates or other Seller Entities, “Sellers” for purposes of such clause shall be deemed to mean NNI (in the case of a U.S. Debtor) and NNL (in the case of a Canadian Debtor and Non-Debtor Nortel Networks Entities (as listed on Exhibit A hereto)).

    (b)        Notwithstanding anything to the contrary in this Agreement, this Article II shall not apply or govern the sale, assignment, transfer, retention or assumption of assets, rights, properties or Liabilities of or by any EMEA Seller in any manner whatsoever. The only assets, rights, properties and Liabilities of the EMEA Sellers that are being sold, assigned, transferred and assumed by, the Buyer Entities, and the terms and conditions thereof, and representations with respect thereto, are solely as expressly set forth in Exhibit P.

    (c)        Where references are made in this Agreement to Sellers assuming an obligation or liability, making a representation or warranty or being referred to in Article V (except as set forth in Section 5.8(l)), giving an undertaking (to do or not do certain actions) or making an acknowledgement, “Sellers” for the purposes of such reference shall be construed and understood not to include the EMEA Sellers or (for the avoidance of doubt) the Joint Administrators. The parties agree that the only obligations of the EMEA Sellers under this Agreement shall be as set forth in Exhibit P. Where references are made in this Agreement to the Sellers taking the benefit of any rights, undertakings, representations or warranties, “Sellers” for the purpose of such reference shall be deemed to include the EMEA Sellers and the Joint Administrators.

    (d)        For the sake of clarity, the provisions in Exhibit P have been drafted separately from the provisions in the body of this Agreement to reflect differing market practices in the countries of jurisdiction of the EMEA Sellers. The provisions contained in the body of this Agreement and the provisions of Exhibit P shall be interpreted independently.

    (a)        The aggregate consideration for the Acquired Assets and the EMEA Acquired Assets (the “Purchase Price”) shall be an amount equal to the sum of (i) seventeen million six hundred fifty thousand dollars ($17,650,000) (the “Base Purchase Price”), plus or minus (ii) the amount by which the Inventory Value of the Specified Inventory is greater or less than the Target Inventory Value (on a dollar-for-dollar basis) (provided, that in no event shall Buyer be required to purchase Specified Inventory with an Inventory Value greater than three million dollars ($3,000,000) in the aggregate or otherwise pay more than three million dollars ($3,000,000) in the aggregate in respect of the Specified Inventory), plus or minus (iii) the amount by which the Warranty Reserve is greater or less than the Warranty Target Amount (on a dollar-for-dollar basis) plus or minus (iv) the amount by which the Business Tangible Property Value is greater or less than the Target Business Tangible Property Value (on a dollar-for-dollar basis). At least three (3) Business Days prior to the Closing, the Main Sellers and NNUK shall notify Buyer in writing of the identity of the Escrow Agent. At the Closing, Buyer shall pay the full amount of the Purchase Price to the Escrow Agent to hold such amounts on behalf of the Seller Entities pending an agreed allocation of the Purchase Price among Sellers in cash by wire transfer of immediately available funds to the bank account that the Escrow Agent has designated in writing at least three (3) Business Days prior to the Closing, and such Escrow Agent shall collect such funds on behalf of the Seller Entities. For the avoidance of doubt, the Escrow Agent shall hold such funds on behalf of the Seller Entities only, and Buyer shall have no recourse to such funds held by the Escrow Agent in respect of any claim against any Seller or Affiliate thereof. Notwithstanding anything in this Agreement to the contrary, Sellers shall have the right to provide Buyer, at least three (3) Business Days prior to the Closing, with a written notice executed by all Sellers instructing that Buyer pay the Purchase Price directly to Sellers and to the bank accounts to which such payments should be made (in the proportions specified in such written notice), and in such case (i) Buyer shall pay the Purchase Price directly to Sellers as specified in such notice and (ii) all references to Escrow Agent hereunder shall be disregarded.

    (b)        Three (3) Business Days prior to the Closing Date, NNI and NNL shall deliver to Buyer a written certificate of a duly authorized officer of NNI and NNL, setting forth as of such date (i) an updated Schedule 5.6(b) (as set forth in the last sentence of Section 5.6(b)), and (ii) their good faith determination of the Inventory Value of the Specified Inventory, the Business Tangible Property Value, the Warranty Reserve and the amount payable to Buyer pursuant to Section 7.10, together with reasonable supporting detail therefor. Buyer shall be entitled to review such certificate, and in connection therewith, Sellers shall, and shall cause their Affiliates to, at no cost to Buyer, provide Buyer with access at all reasonable times upon the prior written request of Buyer to any records reasonably related to the New Exclusive Service Contracts, the Multi-Year Exclusive Service Contracts, the Warranty Reserve, the Business Tangible Property Value and the Inventory Value of the Specified Inventory. Unless the parties agree to make any change to the foregoing prior to the Closing, the amounts set forth on such certificate shall be the amounts therefore used for purposes of the amount payable by Buyer pursuant to Section 3.1(a).

    (c)        For all purposes of this Section 3.1, (i) the Inventory Value of the Specified Inventory shall be calculated taking into account, and the certificate delivered by NNI and NNL pursuant to Section 3.1(b) shall include, both Business Inventory and EMEA Inventory, (ii) the Warranty Reserve shall be calculated taking into account, and the certificate delivered by NNI and NNL pursuant to Section 3.1(b) shall include, the Warranty Reserve applicable to all Sellers (including the EMEA Sellers) and (iii) the Business Tangible Property Value shall be calculated taking into account, and the certificate delivered by NNI and NNL pursuant to Section 3.1(b) shall include, the Business Tangible Property and the EMEA Tangible Property. For the sake of clarity, any EMEA Inventory or EMEA Tangible Property excluded from the sale and purchase hereunder pursuant to the provisions of Section 2(b) of Exhibit P shall result in a reduction in the Inventory Value of the Specified Inventory or in the Business Tangible Property Value equal to the book value, net of reserves, of the excluded EMEA Inventory or EMEA Tangible Property.

    (a)        The Purchase Price paid by Buyer hereunder shall be allocated in accordance with Schedule 3.2 (the “Asset Allocation Schedule”), which applies the residual allocation method under Code Section 1060 and the regulations thereunder. For the avoidance of doubt, the amounts allocated to the Business Tangible Property, EMEA Tangible Property, Business Inventory and EMEA Inventory (both on the initial Schedule 3.2 and any modification thereto) shall be the relevant Seller Entity’s net book value for such assets, as determined by such Seller Entity consistent with GAAP. In the event of (i) a change or correction to the Acquired Assets or EMEA Acquired Assets, (ii) a final determination of the Purchase Price pursuant to Section 3.1 or (iii) any adjustment to the allocation of the Purchase Price among Sellers required by any Bankruptcy Court or other Governmental or Regulatory Body of competent jurisdiction, Schedule 3.2 shall be modified in a manner consistent with such change or correction and the principles set forth above and on Schedule 3.2; provided, that any change to Schedule 3.2 in the circumstances described in clause (i) or (ii) of this Section 3.2(a) shall be agreed between the Main Sellers and Buyer, but no consent of Buyer shall be necessary for a modification of Schedule 3.2 in the circumstances set forth in clause (iii) of this Section 3.2(a). In the event any EMEA Inventory or EMEA Tangible Property is excluded from the sale and purchase hereunder pursuant to the provisions of Section 2(b) of Exhibit P, the amounts allocated on Schedule 3.2 to the applicable EMEA Seller(s) in respect of inventory and/or fixed assets shall be reduced by an amount equal to the book value, net of reserves, of the excluded EMEA Inventory or EMEA Tangible Property, as the case may be.

    (b)        Each of the parties hereto shall not, and shall not permit any of its Affiliates to, take a position (except as required pursuant to any Order) on any Tax Return, or before any Taxing Authority or in any judicial proceeding to the extent Tax issues are raised, that is in any way inconsistent with the allocation of the consideration among the Acquired Assets and/or EMEA Acquired Assets determined in accordance with Section 3.2(a).

    (c)        Each of the parties hereto and any Affiliate of any such party may determine in its discretion how it should treat the Assumed Liabilities for Tax purposes in any relevant jurisdiction and shall not be bound by the position taken by any other party or Affiliate thereof with respect thereto in such jurisdiction or any other jurisdiction.

    (a)        ▇▇▇▇(s) of Sale, each executed by the applicable Seller Entity (in the applicable form);

    (b)        Counterpart signature pages, executed by the applicable Seller Entities, to the IP License Agreement, the Master Purchase Agreement, the Transition Services Agreement, the Trademark License Agreement, the Patent Assignment Agreement, the Contract Manufacturer Inventory Agreement, the Assignment and Assumption Agreement(s) (in the applicable form), the Trademark Assignment Agreement and the Interim Product Purchase Agreement;

    (c)        The Sellers Closing Certificate, executed by the Main Sellers;

    (d)        An updated Schedule 2.1(c), Schedule 5.5(a) (if applicable) and Schedule 5.12(a) (if applicable); and

    (e)        Any amounts payable to Buyer pursuant to Section 7.10.

    (a)        The Purchase Price to the Escrow Agent to hold such amounts on behalf of the Seller Entities pending an agreed allocation of the Purchase Price among them;

    (b)        To the Main Sellers, counterpart signature pages executed by Buyer (or its Affiliates) to the IP License Agreement, the Master Purchase Agreement, the Transition Services Agreement, the Trademark License Agreement, the Patent Assignment Agreement, the Contract Manufacturer Inventory Agreement, the Assignment and Assumption Agreement(s), the Trademark Assignment Agreement and the Interim Product Purchase Agreement; and

    (c)        To the Main Sellers, the executed Buyer Closing Certificate.

    (a)        Tangible Assets. Within fourteen (14) days after the Closing Date, Sellers shall, or shall cause the other applicable Seller Entities to, at its or their cost and expense, de-install, disassemble, pack and crate the tangible Acquired Assets for shipping by Buyer, and notify Buyer no less than three (3) Business Days in advance that such tangible Acquired Assets will be ready for shipment by Buyer. Buyer shall, within two (2) Business Days of the date in which such Acquired Assets are ready for shipping by Buyer, transport or cause to be promptly transported, at its cost and expense, such Acquired Assets to such facility or location of Buyer or its Affiliates as Buyer shall elect. All risk of loss and damage with respect to the Acquired Assets shall pass from the applicable Seller or Seller Entity to Buyer on the earlier of (x) Buyer or its Affiliates or their representatives taking delivery of such Acquired Assets and (y) two (2) Business Days after such Acquired Assets are ready for shipping to Buyer.

    (b)        Intellectual Property and Documentation. The delivery of the tangible or electronic copies of the Business Intellectual Property and the other documentation set forth in Section 2.1(k) shall be accomplished at or following the Closing in the manner set forth in the Transition Services Agreement and/or delivered at Closing pursuant to Section 8.1(g); provided, that neither any Seller nor any of its Affiliates or representatives shall have any obligation to (x) create, recreate, improve, prepare, develop or acquire any of the foregoing or (y) document, create any physical or electronic embodiment of, or otherwise put into tangible form, any of the foregoing, other than making copies of existing documents or files for delivery to Buyer.

    (c)        Other Assets. If after the deliveries provided for in Section 4.4(a) or 4.4(b) have taken place, and other than in the case of any Intellectual Property Assets or Intellectual Property Rights identified by Buyer after the Closing (which are covered by Section 4.5), if any Seller Entity or Buyer Entity, as the case may be, shall have in its possession any asset or right which Buyer and NNI agree should have been delivered to Buyer or retained by such Seller Entity, as applicable, except in the case of patents, patent applications, inventions or invention disclosures (unless expressly set forth on Schedule 2.1(d)), Sellers or Buyer shall, or shall cause their respective Affiliates, as the case may be, to promptly deliver such asset or right to the other party.

    (a)        Following the Closing, each Seller shall, and shall cause its Affiliates who are not Sellers to, use commercially reasonable efforts to locate existing tangible written and/or electronic embodiments of Prior IP.

    (b)        In the event that Buyer believes that any Seller has not transferred to Buyer or its Affiliates any Intellectual Property Assets or Intellectual Property Rights (other than patents, patent applications, inventions or invention disclosures, unless expressly set forth on Schedule 2.1(d)) that constitute Business Intellectual Property or Prior IP (“After Identified IP”), Buyer shall be entitled to give NNI written notice thereof, describing in reasonable detail the After Identified IP. If the After Identified IP constitutes Business Intellectual Property or Prior IP and such After Identified IP is as of such time owned by a Seller or its Affiliates, Sellers shall cause all right and title to such After Identified IP to be promptly transferred and assigned to Buyer or its Affiliates without further consideration and deliver to Buyer or its Affiliates tangible or electronic embodiments of such After Identified IP; provided, that neither any Seller nor any of its Affiliates or representatives shall have any obligation to (x) create, recreate, improve, prepare, develop or acquire any After Identified IP or (y) document, create any physical or electronic embodiment of, or otherwise put into tangible form, any After Identified IP, other than making copies of existing documents or files for delivery to Buyer.

    (a)        Schedule 5.5(a) sets forth, consistent with GAAP, as of the date set forth on Schedule 5.5(a), of (i) the net book value of the Business Tangible Property, (ii) the net book value of the Specified Inventory set forth in Schedule 5.6(b) and (iii) a reserve with respect to the warranty obligations of the type that Buyer and its Affiliates will undertake to perform following the Closing pursuant to the Master Purchase Agreement (as if the Closing had occurred on the date set forth on Schedule 5.5(a)). In the event of any change to such Business Tangible Property, Specified Inventory (as and to the extent provided in Section 5.6(b)) or warranty reserves between the date of this Agreement and the Closing Date, Sellers shall provide Buyer with an updated version of Schedule 5.5(a) prior to the Closing.

    (b)        Schedule 5.5(b) contains a true and complete copy of the unaudited, pro forma balance sheets of the Historical Velocity Business, as of December 31, 2007 and as of December 31, 2008 and related unaudited, pro forma statements of income of the Historical Velocity Business for the fiscal years ended December 31, 2007 and December 31, 2008 (the “Pro Forma Financial Statements”). Subject to the limitations, qualifications and exceptions set forth in Section 5.5(c), Schedule 5.5(b) and/or Section 9.15 (as the case may be), the Pro Forma Financial Statements (x) have been prepared specifically by Sellers for this Agreement from the books and records of Sellers and their Affiliates, which are maintained in accordance with GAAP (except that carve-out accounting guidelines as outlined by the SEC have not been utilized, and except for the absence of footnotes and other disclosures required by U.S. GAAP), and (y) fairly present in all material respects the financial condition and results of operations of the Historical Velocity Business as of the respective dates thereof and for the periods covered thereby.

    (c)        The Business, the Acquired Assets and the Assumed Liabilities constitute only a limited subset of the Historical Velocity Business and of the assets and liabilities presented in the Pro Forma Financial Statements. Likewise, the Historical Velocity Business and the Pro Forma Financial Statements include assets and liabilities not included within the Acquired Assets or the Assumed Liabilities. Accordingly, the Pro Forma Financial Statements cannot be viewed as fairly presenting the Business, the Acquired Assets or the Assumed Liabilities to the extent that the Pro Forma Financial Statements include assets and liabilities not included within the Acquired Assets or Assumed Liabilities. Neither the Historical Velocity Business nor the Business has operated as a separate “stand-alone” entity, nor have Sellers or their Affiliates previously maintained separate financial statements for the Historical Velocity Business or the Business. As a consequence, (i) in order to prepare the Pro Forma Financial Statements, it has been necessary for Sellers to make numerous subjective judgments regarding financial allocations, and Sellers have summarized those judgments that Sellers believe are material in the Pro Forma Financial Statements in Schedule 5.5(c); and (ii) the Pro Forma Financial Statements do not present financial conditions or results of operations that would have occurred if either the Historical Velocity Business or the Business had been operated by Sellers and their Affiliates as a “stand-alone” entity. In addition, in order to present the Pro Forma Financial Statements, it has also been necessary for Sellers to make various assumptions regarding the basis of their presentation, and Schedule 5.5(c) summarizes such assumptions that Sellers believe are material.

    (a)        Except as set forth in Schedule 5.6(a): (i) The applicable Seller or another Seller Entity has exclusive legal and valid title to all of the Business Tangible Property and the Business Inventory, free and clear of all Liens other than Permitted Liens. (ii) Upon consummation of the Transactions, Buyer will have acquired good and marketable title in and to, the Business Tangible Property and the Business Inventory, (x) in the case of Acquired Assets that are transferred or assigned by U.S. Debtors, free and clear of all Liens (other than Permitted Liens) and Claims pursuant to Section 363 of the U.S. Bankruptcy Code, (y) in the case of Acquired Assets that are transferred or assigned by Canadian Debtors, free and clear of all Liens (other than Permitted Liens) pursuant to the terms of the Approval and Vesting Order, when granted, and (z) in the case of Acquired Assets that are transferred or assigned by a Non-Debtor Nortel Networks Entity, free and clear of all Liens other than Permitted Liens. (iii) All Business Tangible Property is in good condition, ordinary wear and tear excepted, and is in adequate operating condition for the purposes for which it is used by the Seller Entities in the Business. (iv) All Business Inventory has been created or acquired in the ordinary course of business consistent with past practice.

    (b)        Schedule 5.6(b) sets forth a true and complete list of all Specified Inventory (whether located at a business facility, in the possession of any contract manufacturer, or at any other location in the supply chain of any Seller or any of its Affiliates, but other than EMEA Business Inventory), setting forth the location, aging, net book value and serial number of each item of Inventory (aging and serial number, in the case of finished goods Inventory other than service Inventory (for service Inventory, the aging and serial number thereof will be provided as soon as practicable following the Closing)) as of the date set forth on such Schedule. Pursuant to Section 3.1(b), three (3) Business Days prior to the Closing Date, Sellers shall deliver to Buyer an update of Schedule 5.6(b) as of the most recent date practicable.

    (a)        As of the date hereof, Sellers have made available to Buyer true, correct and complete copies of all of the Business Contracts in effect as of the date of this Agreement. As of the date hereof, each Business Contract in effect as of the date of this Agreement is legal, valid, binding and enforceable against the Seller Entity party thereto, and to the Knowledge of Sellers, against each other party thereto, and is in full force and effect (in each case, subject to the Enforceability Exceptions and the Bankruptcy Proceedings).

    (b)        As of the Closing, Sellers will have made available to Buyer true, correct and complete copies of all of the Business Contracts in effect as of the date of the Closing. As of the date of the Closing, each Business Contract in effect will be as of such date legal, valid, binding and enforceable against the Seller Entity party thereto, and to the Knowledge of Sellers, against each other party thereto, will be in full force and effect (in each case, subject to the Enforceability Exceptions and the Bankruptcy Proceedings) and will continue to be legal, valid, binding, enforceable and in full force and effect following assignment of such Business Contract at Closing (excluding any failure of any such Business Contract (other than an Assumed and Assigned Contract) to be legal, valid, binding, enforceable or in full force and effect as a result of the failure to obtain the consent of the counterparty to such Business Contract to such assignment).

    (c)        No Seller (or any Affiliate of any Seller) has been notified in writing that it is in breach or default under any Business Contract, and to the Knowledge of Sellers, no other party to any Business Contract is in breach or default thereof, nor has any Seller or Affiliate thereof been notified in writing of such other party’s intention to terminate any Business Contract.

    (d)        The Business Contracts do not contain (i) any non-competition, non-solicitation or similar agreements or arrangements or (ii) any “earn-out” or similar agreements or arrangements.

    (e)        No Affiliate of a Seller (other than a Seller Entity) is a party to the Business Contracts.

    (f)        Neither the Business Contracts nor those Contracts not being assigned to Buyer which are the subject of the Master Purchase Agreement are classified contracts requiring contractor employees to have access to classified information during contract performance. All services relating to the Business currently being provided by Sellers or their Affiliates to United States governmental agencies under the foregoing Contracts are being provided indirectly by Sellers or their Affiliates through a prime contractor or upper tier contractor and not directly by Sellers or their Affiliates.

    (a)        Except as set forth on Schedule 5.8(a), (x) between January 1, 2007 and the Closing Date, and (y) to the Knowledge of Sellers, between January 1, 2003 and January 1, 2007, neither Sellers nor their Affiliates have received written notice that any Person, other than a Seller, claims any ownership interest in any of the Business Intellectual Property.

    (b)        Except as set forth on Schedule 5.8(b): To the Knowledge of Sellers, the Products, the processes performed by the Products and/or the use of the Products (including, for the sake of clarity, the Business Intellectual Property and the Licensed IP as used in the Products as of the Closing Date) do not infringe upon the Intellectual Property Rights of any other Person. (x) Between January 1, 2007 and the Closing Date, neither Sellers nor their Affiliates have received, and (y) between January 1, 2003 and January 1, 2007 no Notice Recipient has directly been sent, or indirectly actually received, any written notice specifically alleging that the Products, the processes performed by the Products and/or the use of the Products (including, for the sake of clarity, the Business Intellectual Property and the Licensed IP as used in the Products as of the Closing Date) infringe upon the Intellectual Property Rights of any other Person. (x) Between January 1, 2007 and the Closing Date, neither Sellers nor their Affiliates have received, and (y) between January 1, 2003 and January 1, 2007 no Notice Recipient has directly been sent, or indirectly actually received, from a third party a written offer to ▇▇▇▇▇ ▇▇▇▇▇▇▇ or their Affiliates a license on the basis that the Products (including, for the sake of clarity, the Business Intellectual Property and the Licensed IP as used in the Products as of the Closing Date) infringe any Intellectual Property Rights of such third party.

    (c)        Except as set forth on Schedule 5.8(c), to the Knowledge of Sellers, no Person is infringing upon any Business Intellectual Property. Sellers have not brought any Action or Proceeding (x) between January 1, 2007 and the Closing Date, and (y) to the Knowledge of Sellers, between January 1, 2003 and January 1, 2007, alleging that any Person is infringing upon any Business Intellectual Property.

    (d)        There are no Orders to which Sellers or their Affiliates are party that: (i) restrict the rights of the Seller Entities to use any of the Business Intellectual Property or the Licensed IP (as used in the Products as of the Closing Date) or (ii) permit third parties to use the Business Intellectual Property.

    (e)        Except as set forth on Schedule 5.8(e), Sellers and their Affiliates have taken commercially reasonable and customary steps to maintain their proprietary rights in the Business Intellectual Property, and to preserve the secrecy and confidentiality of all Business Intellectual Property that constitute confidential or proprietary information, and/or trade secrets. Without limiting the foregoing, (i) Sellers and their Affiliates have a policy requiring all employees of Sellers and Affiliates of Sellers with access to confidential or proprietary information, and/or trade secrets included in the Business Intellectual Property to execute a proprietary information, confidentiality and assignment agreement with the applicable Seller or Affiliate of a Seller. No representations or warranties with respect to non-infringement or non-infringing uses of the Business Intellectual Property are made in this Section 5.8(e); the only representations and warranties of Sellers made with respect to non-infringement and non-infringing uses are set forth in Sections 5.8(b) and (c), respectively.

    (f)        Except as set forth on Schedule 5.8(f): (i) As of the Closing Date, good and valid title to the Business Intellectual Property is held solely and exclusively by the Seller Entities, free and clear of any Liens (other than Permitted Liens and licenses granted prior to the date hereof with respect to the Business Intellectual Property). (ii) The Seller Entities are the sole owners of the Licensed IP or otherwise have the rights necessary to grant the licenses granted in the IP License Agreement and the Trademark License Agreement. No representations or warranties with respect to non-infringement of the Business Intellectual Property are made in this Section 5.8(f); the only representations and warranties of Sellers made with respect to non-infringement are set forth in Section 5.8(b).

    (g)        No software included in the Business Intellectual Property contains: (i) to the Knowledge of Sellers, any virus, trojan horse, worm, or other software routines or hardware components designed to permit unauthorized access or to disable, erase, or otherwise harm any computer, system or software; (ii) to the Knowledge of Sellers, except as set forth on Schedule 5.8(g)(ii), any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of a person other than an authorized licensee or owner of a copy of the program or the right and title in and to the software; or (iii) except as set forth on Schedule 5.8(g)(iii), any “open source” code, shareware, or other software that is made generally available to the public without requiring payment of fees or royalties or that does or may require disclosure or licensing of any software owned or used by Buyer.

    (h)        Except as set forth on Schedule 5.8(h), Sellers and their Affiliates have taken all reasonable actions before, and paid all necessary fees in, the United States Patent and Trademark Office to maintain all patents, trademarks, and applications therefor in the Business Intellectual Property.

    (i)        Schedule 5.8(i) sets forth a true and complete list of all (i) third party software, including Restricted Software, (ii) third party software development tools, and (iii) licenses of Intellectual Property Rights from third parties, other than pursuant to cross-licenses, in each case that are currently licensed to Sellers or their Affiliates pursuant to a written contract and that are currently used in the Products or in connection with the Business.

    (j)        As of the Closing Date, between (x) the Business Intellectual Property being assigned to Buyer hereunder and (y) the licenses granted to Buyer pursuant to the IP License Agreement and the other Transaction Documents, except for items (if any) specified hereunder or in the IP License Agreement as not being licensed to Buyer, Sellers and their Affiliates have either assigned hereunder or licensed thereunder to Buyer all of the Intellectual Property Assets and Intellectual Property Rights owned by Sellers and their Affiliates that are used in the Products or in the conduct of the Business as of the Closing Date.

    (k)        To the Knowledge of Sellers, neither Sellers nor any Affiliate of Sellers have assigned any Prior IP to any third party.

    (l)        The EMEA Sellers hold no right, title or interest in any Business Intellectual Property or Prior IP other than the right to exploit such Business Intellectual Property and/or Prior IP pursuant to an intercompany agreement among the Seller Entities and their Affiliates, assuming, for purposes of this Section 5.8(l), that the term “Sellers” contained in Sections 2.1(d) and 2.1(e) were deemed not to exclude the EMEA Sellers from such term.

    (a)        Concurrent with the execution of this Agreement, Sellers are delivering to Buyer a chart (hereinafter referred to as Schedule 5.12(a), but which is not included in the Disclosure Schedules), which sets forth the following data elements, as of the date of this Agreement, with respect to each Business Employee: (i) name, (ii) home address including municipality, state/province and country, (iii) work location, (iv) continuous service date, (v) job title, (vi) JCI (Job Complexity Indicator), (vii) annual base salary (in local currency), (viii) target incentive compensation, (ix) any other compensation or allowances, including pay premium, ex-patriate provisions, reimbursement and relocation, (x) current vacation entitlement in days, (xi) teleworker status, (xii) whether such Business Employee is on a leave of absence approved by Seller or its Affiliates under a Nortel Employee Plan or as required by Law, along with the type of leave and expected date of return to work, if known, (xiii) India Employee Gratuity Accrual, in the case of India Employees, (xiv) such Business Employee’s accrued and unused vacation days, and (xv) whether a background investigation has been performed with respect to such Business Employee. Sellers shall deliver an updated copy of Schedule 5.12(a) to Buyer immediately prior to the Closing, which updated table shall be accurate and complete as of the Closing Date.

    (b)        Except as set forth in Schedule 5.12(b), Sellers and their Affiliates are in compliance in all material respects with all applicable Laws and Orders (including any legal obligation to engage in affirmative action) relating to employment practices, terms and conditions of employment, and the employment, of the Business Employees, including all such Laws and Orders relating to wages, hours, withholding, collective bargaining, employment discrimination, immigration, disability, civil rights, fair labor standards, occupational safety and health, workers’ compensation, pay equity and wrongful discharge. Sellers and their Affiliates have timely prepared and filed all appropriate reports and other filings required by any relevant Governmental or Regulatory Authority with respect to the Business Employees. None of Sellers or their Affiliates is engaged in any unfair labor practice with respect to any Business Employees.

    (c)        Except as set forth in Schedule 5.12(c), (i) neither Sellers nor any of their Affiliates are party to or bound by any work rules and/or collective bargaining agreement that applies to the terms and conditions of employment of any Business Employee or has any obligation to negotiate any such collective bargaining agreement; (ii) there are no trade unions or labor organizations asserting employment rights that would affect any Business Employee and there is no representation claim or petition regarding Business Employees pending before the United States National Labor Relations Board or any similar foreign, state or local labor agency of which Sellers or their Affiliates have been notified in writing and, to the Knowledge of Sellers, no question concerning representation has been raised or threatened in writing respecting Business Employees; (iii) there is no indication that the Business Employees desire to be covered by a collective bargaining agreement; and (iv) to the Knowledge of Sellers, no trade union or labor organization is planning or attempting to organize any of the Business Employees. No strike, slowdown or work stoppage has occurred or, to the Knowledge of Sellers, been threatened with respect to Business Employees, nor has any such strike, slowdown or work stoppage occurred or been threatened within three (3) years prior to the date hereof.

    (d)        Except as set forth in Schedule 5.12(d), no notice has been received by Sellers or their Affiliates of any complaint claiming that any of Sellers or their Affiliates has violated any applicable employment standards, human rights or other labor legislation or any complaints or proceedings of any kind involving Business Employees or, to the Knowledge of Sellers, threatened to be filed against the Acquired Assets, the Assumed Liabilities or the Business before any federal, state, local or foreign Governmental or Regulatory Body or labor relations board, including the National Labor Relations Board and the Equal Employment Opportunity Commission. No notice has been received by Sellers or their Affiliates of the intent of any federal, state, local or foreign Governmental or Regulatory Body responsible for the enforcement of labor or employment Laws to conduct an investigation of Sellers or their Affiliates, and, to the Knowledge of Sellers, no such investigation is in progress, in each case, with respect to the Business Employees.

    (e)        Except as set forth in Schedule 5.12(e), (i) there are no outstanding assessments, penalties, fines, levies, charges, surcharges or other amounts due or owing by Sellers or their Affiliates pursuant to any applicable worker’s compensation Laws or Orders in respect of the Business Employees; and (ii) to the Knowledge of Sellers, there is no audit currently being performed by a Governmental or Regulatory Body pursuant to any applicable workers’ compensation Law with respect to the Business Employees.

    (a)        sell, lease, encumber, transfer or dispose of any assets or rights which would be included in the Acquired Assets or the Licensed IP, unless in the ordinary course of business consistent with past practice;

    (b)        purchase additional Inventory exclusively relating to the Business unless contractually obligated to do so or to replenish a specific type of Inventory exclusively relating to the Business for which it is necessary to fill orders;

    (c)        enter into, adopt, amend, modify or terminate any employee benefit plan, program or arrangement with respect to Business Employees in a manner materially more favorable to the Business Employees, increase in any manner the compensation or benefits of any Business Employee or pay any benefit not required by any existing employee benefit plan, or enter into any Contract to do any of the foregoing, except for normal or periodic increases in compensation, or changes in employee benefit plans that are in the ordinary course of the Business consistent with past practice;

    (d)        amend, modify or terminate any Business Contract, except in the ordinary course of business consistent with past practice;

    (e)        (i) sell, assign, transfer, abandon or fail to maintain, (ii) except in the ordinary course of business consistent with past practice, license or sublicense, or (iii) except in the ordinary course of business consistent with past practice, enter into, amend or terminate any Contract with respect to, any Business Intellectual Property;

    (f)        waive any material rights relating to any of the Acquired Assets or Assumed Liabilities;

    (g)        modify any pricing or discount terms with respect to the Products or services of the Business other than in the ordinary course of business consistent with past practice; or

    (h)        take any action that would prevent or delay Sellers or their Affiliates from licensing the Licensed IP to Buyer or its Affiliates at the Closing.

    (a)        Between the date hereof and the Closing Date, any Seller or its Affiliates shall, in the ordinary course of business, be entitled to enter into New Exclusive Service Contracts, without the need to obtain the consent thereto from Buyer. Other than with respect to New Exclusive Service Contracts and Contracts described in Section 2.1(c)(iii), Sellers shall not, and shall not permit their Affiliates to, without the prior written consent of Buyer, enter into any new Contract between the date hereof and Closing that will be assigned to Buyer at the Closing. In the event Buyer consents to the entry of any such new Contract, Sellers shall prior to the Closing provide an executed copy of such Contract to Buyer.

    (b)        Sellers shall be entitled to submit to Buyer, from time to time between the date hereof and the Closing Date, written updates to the Schedules referenced in Article V (including on the Sellers Closing Certificate) disclosing any events or developments that occurred or any information learned between the date of this Agreement and the Closing Date; provided, that neither such updated Schedules nor any such disclosures on the Sellers Closing Certificate shall operate to in any way modify or cure any breach of the representations and warranties made by Sellers in Article V, including for purposes of meeting the Closing condition set forth in Section 8.1(a).

    (a)        With respect to New Exclusive Service Contracts, Sellers shall, and shall cause each other Seller Entity to, remit to Buyer at the Closing (by wire transfer of immediately available funds to an account designated by Buyer at least three (3) days in advance of the Closing) all amounts paid to any Seller or Seller Entity by the counterparties with respect to any such New Exclusive Service Contract less (in the case of a New Exclusive Service Contract that has been in effect for at least one week prior to the Closing Date) a proportional amount of the moneys paid to any Seller or Seller Entity by the counterparty to such New Exclusive Service Contract prior to the Closing Date (based on the proportion of the period of the New Exclusive Service Contract that occurs between the commencement date thereof and the Closing Date to the entire period of such New Exclusive Service Contract). In the case of a New Exclusive Service Contract that has been in effect for at least one week prior to the Closing Date for which Buyer or any Affiliate of Buyer receives payment therefor following the Closing, Buyer shall promptly pay to the applicable Seller or the applicable Seller Entity (by wire transfer of immediately available funds to an account designated by such Seller or Seller Entity) a proportional amount of the moneys paid to Buyer or its Affiliates by the counterparty to such New Exclusive Service Contract after the Closing Date (based on the proportion of the period of the New Exclusive Service Contract that occurs between the commencement date thereof and the Closing Date to the entire period of such New Exclusive Service Contract).

    (b)        With respect to Multi-Year Exclusive Service Contracts, Sellers shall, and shall cause each other Seller Entity to, remit to Buyer at the Closing (by wire transfer of immediately available funds to an account designated by Buyer at least three (3) days in advance of the Closing) all amounts paid to any Seller or Seller Entity by the counterparties with respect to any such Multi-Year Exclusive Service Contract less a proportional amount of the moneys paid to any Seller or Seller Entity by the counterparty to such Multi-Year Exclusive Service Contract between the date hereof and the Closing Date with respect to Post Signing Periods (based on the proportion of the Post Signing Period that falls between the date hereof and the Closing Date to the overall Post Signing Period). In the case of a Multi-Year Exclusive Service Contract for which payment was due for Post Signing Periods for which Buyer or any Affiliate of Buyer receives payment therefor following the Closing, Buyer shall promptly pay to the applicable Seller or the applicable Seller Entity (by wire transfer of immediately available funds to an account designated by such Seller or Seller Entity) a proportional amount of such moneys with respect to Post Signing Periods (based on the proportion of the Post Signing Period that falls between the date hereof and the Closing Date to the overall Post Signing Period).

    (c)        Three (3) Business Days prior to the Closing Date, NNI and NNL shall deliver to Buyer a certificate listing (x) all New Exclusive Service Contracts and all Multi-Year Exclusive Service Contracts entered into prior to such date, (y) the amounts received by Sellers and the Seller Entities (if any) from third parties in connection with such New Exclusive Service Contracts and Multi-Year Exclusive Service Contracts entered into prior to such date, and (z) the amounts (if any) which have been retained by Sellers and the Seller Entities in connection with such New Exclusive Service Contracts and Multi-Year Exclusive Service Contracts pursuant to Sections 7.10(a) and (b). In the event of any changes with respect to the matters set forth in such certificate between the date thereof and Closing, NNI and NNL shall deliver an update to such certificate as promptly as practicable following Closing, and promptly pay (but in no event prior to the Closing) to Buyer any additional amounts received by Sellers or the Seller Entities between the date of the original certificate and the Closing Date or amounts otherwise excluded from the original certificate but received by a Seller Entity between the date hereof and the Closing Date that are payable to Buyer pursuant to Sections 7.10(a) and/or 7.10(b), subject to Sections 7.10(a) and 7.10(b).

    (d)        In the event that following the Closing any Seller or any other Seller Entity receives any payment in respect of a New Exclusive Service Contract or a Multi-Year Exclusive Service Contract, Sellers shall, and shall cause each other Seller Entity to, promptly pay to Buyer (by wire transfer of immediately available funds to an account designated by Buyer) a proportional amount of the moneys paid to Sellers or any other Seller Entity by the counterparty to such New Exclusive Service Contract or Multi-Year Exclusive Service Contract after the Closing Date (based on the proportion of the period of the New Exclusive Service Contract or Multi-Year Exclusive Service Contract that occurs between the commencement date thereof and the Closing Date to the entire period of such New Exclusive Service Contract or a Multi-Year Exclusive Service Contract).

    (e)        With respect to the New Exclusive Service Contracts and/or Multi-Year Exclusive Service Contracts that are assigned to Buyer or another Buyer Entity hereunder, in the event that the customer under such New Exclusive Service Contracts and/or Multi-Year Exclusive Service Contracts fails to make the required payments due thereunder within the time period for payment thereunder plus a period of thirty (30) days, nothing in this Agreement shall prevent Buyer from terminating such Contracts.

    (a)        As promptly as possible, but in no event later than February 20, 2009, Sellers shall cause the U.S. Debtors to file with the U.S. Bankruptcy Court one or more motions (collectively, the “U.S. Sale Motion”) and proposed orders (collectively, the “U.S. Sale Order”) seeking the approval of the U.S. Bankruptcy Court pursuant to Sections 105, 363, 365 and (to the extent applicable) 1146 of the U.S. Bankruptcy Code of the transfers of the Acquired Assets to Buyer and the assumption by the U.S. Debtors and assignment to Buyer of the Assumed and Assigned Contracts, as specified below.

    (b)        The U.S. Sale Order shall contain the following provisions (it being understood that certain of such provisions must constitute findings of fact or conclusions of Law to be made by the U.S. Bankruptcy Court as part of the U.S. Sale Order):

    (i)        the transfers of the Acquired Assets and the assignment of the Assumed and Assigned Contracts by the U.S. Debtors to Buyer in accordance with this Agreement (A) are or will be legal, valid and effective transfers of such Acquired Assets and assignment of such Assumed and Assigned Contracts, as the case may be, (B) vest or will vest Buyer with all right, title and interest of the U.S. Debtors in and to the Acquired Assets pursuant to section 363(f) of the U.S. Bankruptcy Code free and clear of any and all Liens (other than Permitted Liens and Liens created by Buyer) and Claims whatsoever, whether known or unknown, fixed, liquidated, contingent or otherwise, including any Claims held by any of the U.S. Debtors’ or their Affiliates’ creditors, vendors, suppliers, employees or lessors, and any other Person (collectively, the “Claimants”), and that none of Buyer or its Affiliates shall be liable in any way (as assignee, successor entity or otherwise) for any Claims that any of the Claimants or any other third party may have against the U.S. Debtors, their Affiliates or the Business, or under any such Assumed and Assigned Contract, other than Claims on the account of Assumed Liabilities, and (C) constitute transfers for reasonably equivalent value and fair consideration under the U.S. Bankruptcy Code, the Laws of the States of New York and Delaware and all other applicable State Laws, including those relating to fraudulent conveyance and fraudulent transfers;

    (ii)        all amounts to be paid by the U.S. Debtors to Buyer or to be borne by any U.S. Debtors pursuant to this Agreement and each of the other Transaction Documents shall constitute administrative expenses under Sections 503(b) and 507(a)(1) of the U.S. Bankruptcy Code, and shall be immediately payable if and when any U.S. Debtors’ obligation to pay or bear such amount may arise under this Agreement without any further order of the U.S. Bankruptcy Court;

    (iii)        the U.S. Bankruptcy Court retains exclusive jurisdiction to interpret, construe and enforce the provisions of, and to resolve any and all disputes that may arise under or in connection with the assumption and/or assignment of any Business Contracts under this Agreement and the U.S. Sale Order, in all respects, and further to hear and determine any and all disputes among Sellers, Sellers’ Affiliates, Buyer or its Affiliates, as the case may be, and any non-Sellers party thereto that may arise under or in connection with (A) the assumption and/or assignment of any Assumed and Assigned Contract or (B) the Assumed Liabilities or Excluded Liabilities;

    (iv)        the provisions of the U.S. Sale Order are nonseverable and mutually dependent;

    (v)        the Transactions and the U.S. Sale Order are undertaken by Sellers and Buyer at arm’s length, without collusion and in good faith within the meaning of Section 363(m) of the U.S. Bankruptcy Code, and such parties are entitled to the protections of Section 363(m) of the U.S. Bankruptcy Code;

    (vi)        a determination that approval of this Agreement and the U.S. Sale Order, and consummation of the Transactions, are in the best interests of the U.S. Debtors, their creditors and estates;

    (vii)        a determination that the terms and conditions of this Agreement and the Transactions, including the transfer of the relevant Acquired Assets free and clear of any and all Liens (other than Permitted Liens) and Claims, are fair and reasonable;

    (viii)        the U.S. Debtors may assign and transfer to Buyer all of the U.S. Debtors’ right, title and interest (including common law rights) to all of their intangible property included in the Acquired Assets they each own, including the Assumed and Assigned Contracts to which they are a party, subject to their obtaining deemed consents to the extent required by applicable Law;

    (ix)        provides that any stay of orders authorizing the use, sale or lease of property, or the assignment of an executory Contract or unexpired lease as provided for in Bankruptcy Rules 6004(g) or 6006(d) shall not apply to the U.S. Sale Order and that the U.S. Sale Order is immediately effective and enforceable;

    (x)        provides that neither Buyer nor its Affiliates shall assume Liabilities of any U.S. Debtors or their Affiliates other than the Assumed Liabilities; and

    (xi)        approves the U.S. Debtors’ assumption and assignment to Buyer of the Assumed and Assigned Contracts pursuant to Sections 363 and 365 of the U.S. Bankruptcy Code.

    (a)        the Transactions are approved, and that this Agreement is commercially reasonable and in the best interests of the Canadian Debtors and their stakeholders (it being recognized that such a determination is a finding of fact or conclusions of Law to be made by the Canadian Court as part of the Approval and Vesting Order);

    (b)        the execution of the Agreement by NNL on behalf of all the Canadian Debtors is authorized and approved, and the Canadian Debtors are authorized and directed to take such additional steps and execute such additional documents as may be necessary or desirable for the completion of the transactions contemplated in this Agreement and for the conveyance of the Canadian Debtors’ right, title and interest in the Acquired Assets to the Buyer;

    (c)        all of the Canadian Debtors’ right, title and interest in and to the Acquired Assets shall vest absolutely in the Buyer, free and clear of and from any and all Liens (other than Permitted Liens); and

    (d)        the sale of the Acquired Assets is exempt from the application of the Bulk Sales Act (Ontario).

    (a)        Representations. The representations and warranties of Sellers set forth in Article V shall be true and correct as of the date of this Agreement and as of the Closing Date as if made as of the Closing Date, except (i) for those representations and warranties that address matters only as of a date prior to the execution of this Agreement (which shall be true and correct as of such date, subject to clause (ii) below), and (ii) where the failure of the representations and warranties to be true and correct would not reasonably be expected to result, in the aggregate, in a Business Material Adverse Effect (it being agreed that any materiality or Business Material Adverse Effect qualification in a representation and warranty shall be disregarded in determining whether any such failure would reasonably be expected to result in a Business Material Adverse Effect for purposes of this clause (ii)).

    (b)        Covenants. Sellers shall have performed or complied in all material respects with all obligations and covenants required by this Agreement and the other Transaction Documents to be performed or complied with by Sellers at or prior to the Closing, except in each case to the extent that any such non-compliance arises out of a request made by Buyer in writing which expressly waives compliance with a particular covenant.

    (c)        Law. No Law, temporary restraining order, preliminary or permanent injunction, cease and desist order or other Order issued by any Governmental or Regulatory Body prohibiting or preventing the purchase and sale contemplated by this Agreement or the consummation of the Transactions to be effected at the Closing shall be in effect.

    (d)        Consents and Approvals. All notices, consents and approvals of Governmental or Regulatory Bodies set forth on Schedule 8.1(d) shall have been made or obtained, as applicable.

    (e)        Closing Certificate. The Main Sellers shall have delivered to Buyer a certificate, dated the Closing Date, and signed by an authorized officer of each Main Seller, in substantially the form attached hereto as Exhibit M (the “Sellers Closing Certificate”), with respect to the satisfaction of the conditions specified in Section 8.1(a) and Section 8.1(b) and containing and certifying as to the information set forth in Section 3.1(b) and 7.10(c).

    (f)        Seller Closing Deliveries. Buyer shall have received:

    (i)        Bills of Sale (in the applicable form) executed by the applicable Seller Entities covering (i) Business Tangible Property, EMEA Tangible Property, Business Inventory and EMEA Inventory with an aggregate value equal to or exceeding ninety-five percent (95%) of the aggregate value, in U.S. Dollars, of the Tangible Business Property, EMEA Tangible Property, Business Inventory and EMEA Inventory set forth on the certificate delivered by the Main Sellers pursuant to Section 3.1(b) (excluding from such calculation, for the sake of clarity, all EMEA Inventory and EMEA Tangible Property excluded from the sale and purchase hereunder pursuant to the provisions of Section 2(b) of Exhibit P) and (ii) all Business Intellectual Property, Prior IP, EMEA Business Intellectual Property and EMEA Prior IP;

    (ii)        Assignment and Assumption Agreements (in the applicable form) executed by the applicable Seller Entities with respect to the United States, Canada and the United Kingdom; and

    (iii)        counterpart signature pages executed by the applicable Seller Entities to the IP License Agreement, the Master Purchase Agreement, the Transition Services Agreement, the Trademark License Agreement, the Patent Assignment Agreement, the Contract Manufacturer Inventory Agreement, the Trademark Assignment Agreement and the Interim Product Purchase Agreement.

    (g)        Delivery of Certain Items. NNI shall have delivered to Buyer, in form reasonably acceptable to Buyer, the databases set forth on Schedule 8.1(g).

    (h)        Bankruptcy Orders. Each of the U.S. Bidding Procedures Order, the U.S. Sale Order, the Sale Process Order and the Approval and Vesting Order shall (i) have been entered and (ii) have become Final Orders.

    (i)        Export Licenses. To the extent that any Governmental Authorizations are necessary to assign the Business Intellectual Property to Buyer and/or its Affiliates, Sellers shall have received all such necessary Governmental Authorizations.

    (a)        Representations. The representations and warranties of Buyer set forth in Article VI shall be true and correct as of the date of this Agreement and as of the Closing Date as if made as of the Closing Date, except (i) for those representations and warranties that address matters only as of a date prior to the execution of this Agreement (which shall be true and correct as of such date, subject to clause (ii) below), and (ii) where the failure of the representations and warranties to be true and correct would not reasonably be expected to result, in the aggregate, in a Buyer Material Adverse Effect (it being agreed that any materiality or Buyer Material Adverse Effect qualification in a representation and warranty shall be disregarded in determining whether any such failure would reasonably be expected to result in a Buyer Material Adverse Effect for purposes of this clause (ii)).

    (b)        Covenants. Buyer shall have performed or complied in all material respects with all obligations and covenants required by this Agreement and the other Transaction Documents to be performed or complied with by Buyer at or prior to the Closing, except in each case to the extent that any such non-compliance arises out of a request made by a Seller in writing which expressly waives compliance with a particular covenant.

    (c)        Law. No Law, temporary restraining order, preliminary or permanent injunction, cease and desist order or other Order issued by any Governmental or Regulatory Body prohibiting or preventing the purchase and sale contemplated by this Agreement or the consummation of the Transactions to be effected at the Closing shall be in effect.

    (d)        Consents and Approvals. All notices, consents and approvals of Governmental or Regulatory Bodies set forth on Schedule 8.2(d) shall have been made or obtained, as applicable.

    (e)        Closing Certificate. Buyer shall have delivered to the Main Sellers a certificate, dated the Closing Date, and signed by an authorized officer of Buyer, in substantially the form attached hereto as Exhibit N (the “Buyer Closing Certificate”), with respect to the satisfaction of the conditions specified in the conditions specified in Section 8.2(a) and Section 8.2(b).

    (f)        Buyer Closing Deliveries. Buyer shall have delivered to the Main Sellers or the Escrow Agent, as the case may be, (i) the Purchase Price as specified in Section 4.3(a) and (ii) executed counterpart signature pages of Buyer (or its Affiliates) to the IP License Agreement, the Master Purchase Agreement, the Transition Services Agreement, the Trademark License Agreement, the Patent Assignment Agreement, the Contract Manufacturer Inventory Agreement, Assignment and Assumption Agreements (solely with respect to the United States, Canada and the United Kingdom), the Trademark Assignment Agreement and the Interim Product Purchase Agreement).

    (g)        Israeli Tax Withholding Exemption. Buyer shall have obtained and provided the Main Sellers with a copy of the ITA’s approval of the Israeli Withholding Tax Exemption Application, which approval shall be final and binding on the ITA.

    (h)        Export Licenses. To the extent that any Governmental Authorizations are necessary to assign the Business Intellectual Property to Buyer and/or its Affiliates, Sellers shall have received all such necessary Governmental Authorizations.

    (i)        Bankruptcy Orders. Each of the U.S. Bidding Procedures Order, the U.S. Sale Order, the Sale Process Order and the Approval and Vesting Order shall (i) have been entered and (ii) have become Final Orders.

    (a)        (i)        All sums payable under this Agreement shall be exclusive of Transfer Taxes (as defined below). Subject to Section 9.1(a)(iii) and Section 9.1(a)(iv), Buyer, on the one hand, and Sellers, on the other, shall each be responsible for 50% of all goods and services, sales, use, transfer, documentary, VAT, value added, stamp, recording and similar Taxes incurred in connection with the purchase and sale of the Acquired Assets and EMEA Acquired Assets (for the avoidance of doubt, including interest and penalties but excluding any Income Taxes) (“Transfer Taxes”); provided, that Buyer shall be responsible for 100% of the portion of such Transfer Taxes as to which Buyer and NNI in good faith determine it is reasonably expected that Buyer will receive a refund, rebate, credit or similar amount (a “Transfer Tax Refund”) (where the Transfer Tax in question is VAT or any similarly computed value added tax, on the assumption that Buyer is registered for VAT in the jurisdiction in which the relevant supply of the EMEA Acquired Assets takes place and that Buyer has paid to the EMEA Seller the VAT charged to it by such EMEA Seller in respect of the acquisition of the EMEA Acquired Assets without regard to this Section 9.1(a)(i)). Buyer (or Sellers or their Affiliates, in the case of Transfer Taxes required to be collected, remitted or paid by Sellers or their Affiliates) shall timely pay or cause to be paid any Transfer Taxes to the applicable Taxing Authority. Buyer or Sellers or their Affiliates, as applicable, shall reimburse such paying party its share of such Transfer Taxes, if any, as determined pursuant to the foregoing, within seven (7) Business Days of receipt of a reimbursement request from the paying party; provided, that such reimbursement need not be paid prior to three (3) Business Days before such Transfer Tax is required to be paid to the Taxing Authority. Buyer or Sellers, as applicable, shall promptly provide to the other party sufficient documentation evidencing payment of any Transfer Taxes. Disputes with respect to the amount of Transfer Taxes due will be referred to an accounting firm jointly selected and engaged by Buyer and NNI for resolution. The fees of such accounting firm shall be borne by the party who in the opinion of such accounting firm had the position which was more erroneous.

    (ii)        Notwithstanding clause (a)(i) above, Buyer shall be responsible for 100% of any Transfer Taxes incurred in connection with the purchase and sale of the Acquired Assets and EMEA Acquired Assets (A) as a result of Buyer’s failure to obtain any necessary state sales and use tax permits, timely deliver any necessary resale certificates, or otherwise take any action that would result in an exemption relating to, or a reduced rate of, such Transfer Taxes and (B) for any Transfer Taxes that are interest or penalties, to the extent that the interest or penalties arise in respect of an amount of Transfer Tax that the Buyer is required pursuant to sections  9.1(a) (i) or (iv)  to pay to a Taxing Authority or any Seller or Affiliate of the Seller where the Buyer has failed to pay such Transfer Taxes within the time limits envisaged in Section 9.1(a) (i) or (iv). Buyer or its Affiliate shall be solely responsible for ensuring that any exemption relating to, or a reduced rate of, Transfer Taxes in connection with the transactions contemplated herein applies and, in that regard, shall, prior to the Closing Date, provide Sellers and/or any of their Affiliates, as the case may be, with its permit number and/or any appropriate certificate of exemption and/or other document or evidence to support the claimed entitlement to such exemption by such party or an Affiliate thereof. NNI will make commercially reasonable efforts to provide Buyer with information requested by Buyer that is necessary for Buyer to obtain permits or certificates exempting any or all of the Transactions in whole or part from Transfer Taxes.

    (iii)        Sellers’ obligations pursuant to this Section 9.1(a) shall be based on the Asset Allocation Schedule as of the Closing Date. Notwithstanding anything to the contrary in this Section 9.1(a), in the event that the Asset Allocation Schedule is changed or modified after the Closing Date in accordance with Section 3.2, Buyer (or its Affiliate, as applicable) shall promptly pay directly to the appropriate Taxing Authority or the applicable Seller or Seller’s Affiliate (if requested by such Seller or Seller’s Affiliate) any Transfer Taxes that may be due as a result of such change or modification.

    (iv)          Where a sum is paid pursuant to this Agreement in consideration for any supply (or deemed supply) of goods or services the payor shall,  in addition to the consideration payable for such supply, pay an amount equal to the VAT (if any) arising in respect of such supply against the production of a valid VAT invoice. Where and to the extent that the Transfer Taxes described in Section 9.1(a) are VAT, Section 9.1(a) shall apply save that the Buyer shall pay or shall procure that the relevant Affiliate shall pay an amount equal to 100% of such VAT to the Seller or relevant Affiliate against the production of a valid VAT invoice. The Sellers or their Affiliates shall then reimburse the Buyer or its Affiliates, as required, in accordance with Section 9.1(a)(i).

    (b)        If Buyer or any Affiliate of Buyer is required by Law to make any deduction or withholding for any Tax with respect to any consideration payable hereunder, the consideration payable hereunder shall be increased to an amount that, after such deduction or withholding, will result in payment to Sellers or any of their Affiliates of the full amount Sellers or such Affiliates would have received from Buyer had such deduction or withholding not been made.  Buyer shall promptly furnish Sellers with such evidence as may be required by the applicable taxing authorities to establish that any such Tax has been paid.

    (c)        Sellers and Buyer will each provide the other with such assistance as may reasonably be requested in connection with the preparation of any Tax Return relating to the Business.

    (a)        Except as set forth on Schedule 2.1(d), no interest in any Marks of any Seller or any of its Affiliates is being transferred or assigned (or, except as set forth in the Trademark License Agreement, licensed) to Buyer or any subsidiary of Buyer pursuant to the Transactions. Except as may be expressly permitted pursuant to the Trademark License Agreement (including, for the sake of clarity, in the case of Products purchased pursuant to Section 9.10), Buyer will, within thirty (30) days following the Closing Date, remove or obliterate all such Marks from the signs, purchase orders, invoices, sales orders, labels, letterheads, shipping documents, business cards and other materials included in the Acquired Assets, and Buyer shall not, and shall not permit its subsidiaries to, put into use after the Closing Date any such materials not in existence on the Closing Date that bear any ▇▇▇▇; provided, that if such materials are used by Buyer or any of its subsidiaries during such thirty (30) day period, Buyer shall, and shall cause its subsidiaries to, conspicuously note thereon that ownership of the Business has transferred to Buyer. Except to the extent expressly set forth elsewhere in this Agreement or in another Transaction Document, nothing in this Agreement shall give Buyer permission, without the prior written consent of NNI in each instance, to use in advertising, publicity or otherwise the name of any Seller or any of its Affiliates or any ▇▇▇▇ owned or used by any Seller or any of its Affiliates.

    (b)        Each Seller hereby covenants and agrees (i) that (x) if such Seller has a corporate name containing the ▇▇▇▇ “alteon”, it will, and (y) such Seller will cause any Affiliate of such Seller (other than another Seller) that has a corporate name containing the ▇▇▇▇ “alteon” to, in either case remove “alteon” from such corporate name(s), within thirty (30) days of the Closing Date (in the case of U.S.-organized Sellers and Affiliates) and as soon as reasonably practicable following the Closing (in the case of non-U.S. organized Sellers and Affiliates) through the use of commercially reasonable efforts; and (ii) notwithstanding the period set forth in Section 9.3(b)(i), from and after the Closing, Sellers shall not conduct, and each Seller shall prevent any such Affiliate from conducting, any commercial activity under or in connection with a corporate name containing “alteon.” Buyer hereby grants to each Seller and Affiliate thereof described in the preceding sentence a fully paid up, worldwide, personal, non-transferable and non-assignable, indivisible and non-exclusive right to use the ▇▇▇▇ “alteon” as part of its corporate name during the period set forth in the preceding sentence.

    (a)        Following the Closing, Buyer will afford to Sellers, their counsel and their accountants, during normal business hours, reasonable access to the books and records relating to the Business, Acquired Assets or the Assumed Liabilities in its possession with respect to periods after the Closing and the right to make copies and extracts therefrom, to the extent that such access may be reasonably required by the requesting party (i) to facilitate the investigation, litigation and final disposition of any claims that may have been or may be made against any Seller or its Affiliates or (ii) for any other reasonable business purpose.

    (b)        Without limiting the generality of Section 9.4(b), following the Closing, Buyer shall (i) provide each Seller with such assistance and cooperation as may be reasonably requested by such Seller and (ii) make available to each Seller and its legal counsel, during normal business hours, any of the Transferring Employees who were involved in, or are otherwise knowledgeable about, pre-Closing matters, including making such Transferring Employees available on a mutually convenient basis to provide information, testimony at depositions, hearings or trials, and such other similar assistance as may be reasonably requested by such Seller.

    (c)        The applicable Seller shall reimburse Buyer for reasonable out-of-pocket costs and expenses incurred in assisting such Seller pursuant to this Section 9.4. Buyer shall not be required by this Section 9.4 to take any action that would unreasonably interfere with the conduct of its business, unreasonably disrupt its normal operations or materially impair a Transferring Employee’s ability to perform his or her duties.

    (a)        if any Seller or any of its Affiliates receives any payment, refund or other amount that is an Acquired Asset, such Seller shall or shall cause such Affiliate to, within thirty (30) days of becoming or being made aware of such payment, remit, or shall cause to be remitted, such amount to Buyer; and

    (b)        if Buyer receives any payment, refund or other amount that is an Excluded Asset, Buyer shall, within thirty (30) days of becoming or being made aware of such payment, remit, or shall cause to be remitted, such amount to the applicable Seller or Affiliate thereof.

    (a)        For a period of three (3) months following the Closing Date, in the event separate financial statements with respect to the Business for periods from and after January 1, 2007 but prior to the Closing Date are deemed to be necessary by Buyer’s accountants or required under applicable securities Laws or other reporting requirements, the Main Sellers agree that they shall, upon the reasonable request of Buyer, (i) assist and cooperate with Buyer in the production of such separate financial statements and (ii) permit Buyer and Buyer’s accountants, agents and representatives to have reasonable access, in accordance with Section 9.4(a) (mutatis mutandis), to the books and records pertaining to the Business during periods from and after January 1, 2007 but prior to the Closing which have been retained by Sellers and their Affiliates. Buyer’s rights under this Section 9.13(a) are in addition to its rights pursuant to Section 9.15.

    (b)        For a period of three (3) months following the Closing Date, Sellers shall, and shall cause their Affiliates to, at all reasonable times upon the prior written request of Buyer, provide Buyer with access to the information, records, files, books and documents reasonably related to the Business, the Products, the Acquired Assets or the Assumed Liabilities which are retained by Sellers or their Affiliates at Closing and not transferred to Buyer pursuant to Section 2.1, to the extent necessary for Buyer to operate the Business following the Closing (without duplication of Section 9.13(a)); provided, that the applicable Seller or Affiliate shall be entitled to redact those portions of such materials that in no way relate to the Business, the Products, the Acquired Assets or the Assumed Liabilities; and provided, further, that no Seller or Affiliate thereof shall be required to provide Buyer with any of the foregoing or access thereto to the extent not permitted pursuant to the terms of applicable Law or applicable contractual obligations of any Seller or its Affiliates. Any information, records, files, documents and/or Contracts that any Seller or Affiliate thereof provides to Buyer (or provides Buyer access to) pursuant to this Section 9.13(b) shall constitute Seller Confidential Information and be subject to the provisions of Section 9.14.

    (c)        Buyer shall reimburse each Seller and its Affiliates for all reasonable out-of-pocket costs and expenses incurred by such Seller and its Affiliates in assisting Buyer pursuant to this Section 9.13. Neither any Seller nor its Affiliates shall be required by this Section 9.13 to take any action or provide Buyer or its accountants, agents or representatives with access to records, if such would unreasonably interfere with the conduct of its business or unreasonably disrupt the normal operations of such Seller or its Affiliates.

    (a)       Each Seller shall, and shall cause its Affiliates to, keep confidential in accordance with such Seller’s standards for protecting its own confidential information, and shall not use or disclose to any other Person (other than its Affiliates and its and their officers, directors, employees, agents and representatives), any Business Confidential Information, except as permitted by this Agreement. Each Seller shall only disclose Business Confidential Information to its or its Affiliates’ officers, directors, employees, agents, auditors, lenders, consultants and other representatives who are legally bound by a confidentiality obligation to a Seller or its Affiliates no less protective of the Business Confidential Information than that contained in this Section 9.14 and who have a bona fide need to access the Business Confidential Information consistent with Sellers’ rights under this Agreement.

    (b)       Each Seller shall, and shall cause its Affiliates to, keep confidential in accordance with such Seller’s standards for protecting its own confidential information, any Non-Exclusive Confidential Information; provided, that nothing in this Agreement shall prevent or limit in any way whatsoever the right of a Seller or its Affiliates to utilize or disclose the Non-Exclusive Confidential Information, without need to obtain consent therefor from Buyer, or otherwise impose obligations on such Seller or its Affiliates in respect of Non-Exclusive Confidential Information other than what such Seller or its Affiliates would otherwise undertake for Seller Confidential Information.

    (c)       Buyer shall, and shall cause its Affiliates to, keep confidential in accordance with Buyer’s standards for protecting its own confidential information, and shall not use or disclose to any other Person (other than its Affiliates and its and their officers, directors, employees, agents and representatives), any Seller Confidential Information, except as permitted by this Agreement. Buyer shall only disclose Seller Confidential Information to its or its Affiliates’ officers, directors, employees, agents, auditors, lenders, consultants and other representatives who are legally bound by a confidentiality obligation to Buyer or its Affiliates no less protective of the Seller Confidential Information than that contained in this Section 9.14 and who have a bona fide need to access the Seller Confidential Information consistent with Buyer’s rights under this Agreement.

    (d)       Notwithstanding anything to the contrary in this Section, any party may disclose Confidential Information:

    (i)       if and to the extent such Confidential Information is required by subpoena or Order to be disclosed;

    (ii)       to a Governmental or Regulatory Body;

    (iii)       pursuant to any Bankruptcy Proceeding;

    (iv)       to the extent such disclosure is otherwise required by applicable Law or requirement of any stock exchange on which the shares or stock of the Person in question are listed;

    (v)       in connection with a party’s exercise and enforcement of any rights or remedies provided under this Agreement; or

    (vi)       to the extent such disclosure is required for financial or tax reporting purposes of the applicable party or its Affiliates.

    (e)        If any Person is requested or required (by subpoena, court order or similar process) to disclose any Confidential Information as provided in Section 9.14(d)(i), or intends to disclose any Confidential Information as provided in Section 9.14(d)(iii), the Person from which the disclosure is sought or who intends to make such disclosure shall (i) provide the other parties with prompt written notice of such request or requirement and (ii) make reasonable efforts to cooperate with the applicable party so that such party may seek a protective order or other appropriate remedy or protection. If such protective order or other remedy or protection is not obtained, or the applicable party waives compliance with the provisions of this Agreement, the Person from which the disclosure is sought shall use reasonable efforts to disclose only that portion of the Confidential Information that is legally requested or required to be disclosed.

    (f)        Nothing in this Section 9.14 shall prevent Sellers or their Affiliates from disclosing either Business Confidential Information or Non-Exclusive Confidential Information to other prospective purchasers of the Business that have executed a confidentiality agreement with a Seller or an Affiliate thereof.

    (a)        Buyer shall restrict the disclosure of such personal data to such of their employees, agents and advisors as is reasonably necessary to give effect to the Transactions;

    (b)        except as permitted pursuant to Section 9.18(a), personal data shall not be disclosed to any Person (including, for the avoidance of doubt, any other employee of Buyer) without the consent of NNI, such consent not unreasonably to be withheld; and

    (c)        personal data shall be returned to the applicable Seller or destroyed if this Agreement is terminated. Disclosure shall only be made in accordance with applicable Law.

    (a)        By the mutual written consent of the Main Sellers and Buyer;

    (b)        By Buyer by giving written notice to the Main Sellers in the event Sellers are in material breach of this Agreement or any other Transaction Document and such breach, (i) individually or in combination with any other such breach, would cause the conditions set forth in Section 8.1 not to be satisfied and (ii) is not cured within thirty (30) days following delivery by Buyer to Sellers of written notice of such breach;

    (c)        By the Main Sellers by giving written notice to Buyer in the event Buyer is in material breach of this Agreement or any other Transaction Document and such breach, (i) individually or in combination with any other such breach, would cause the conditions set forth in Section 8.2 not to be satisfied and (ii) is not cured within thirty (30) days following delivery by the Main Sellers to Buyer of written notice of such breach;

    (d)        By Buyer, on or after March 12, 2009, if either the U.S. Bidding Procedures Order or the Sale Process Order has not been entered on or prior to such date or has been entered but stayed as of such date;

    (e)        By Buyer by giving written notice to the Main Sellers if the Closing shall not have occurred on or prior to the earlier of (i) April 15, 2009 or (ii) the thirtieth (30^th) day following the U.S. Sale Order becoming a Final Order by reason of the failure of any condition precedent under Section 8.1; provided, that the right to terminate this Agreement under this subsection (e) shall not be available to Buyer if such failure results exclusively or primarily from a breach by Buyer of one or more representations, warranties, covenants or agreements of Buyer contained in this Agreement or any other Transaction Document; and provided, further, that if all of the conditions to Closing set forth in Section 8.1 have been satisfied, other than (x) those conditions that are to be satisfied at the Closing and (y) the condition set forth in Section 8.1(h) as a result of the failure of any of the U.S. Bidding Procedures Order, the U.S. Sale Order, the Sale Process Order and/or the Approval and Vesting Order to become a Final Order on or before April 15, 2009, then the reference to “April 15, 2009” in clause (i) of this Section 10.1(e) shall be replaced by a reference to “May 1, 2009”

    (f)        By the Main Sellers by giving written notice to Buyer if the Closing shall not have occurred on or prior to the earlier of (i) May 15, 2009 or (ii) thirtieth (30^th) day following the U.S. Sale Order becoming a Final Order by reason of the failure of any condition precedent under Section 8.2; provided, that the right to terminate this Agreement under this subsection (f) shall not be available to Sellers if such failure results exclusively or primarily from a breach by Sellers of one or more representations, warranties, covenants or agreements of Sellers contained in this Agreement or any other Transaction Document;

    (g)        By the Main Sellers or Buyer if Sellers enter into a binding definitive agreement with respect to an Alternative Transaction; or

    (h)        By the Main Sellers by giving written notice to Buyer if the Cure Costs payable by Sellers (excluding any Cure Costs that Buyer has agreed to pay pursuant to Section 7.23) exceed the higher of (x) $1,000,000 in the aggregate and (y) if an Auction (as defined in the U.S. Bidding Procedures Order) occurs and Buyer makes a subsequent bid with a base cash component (excluding any adjustment such as are set forth in clauses (ii) through (iv) of Section 3.1(a)) greater than the Base Purchase Price, five percent (5%) of such base cash component; provided, that the Main Sellers shall not be permitted to exercise their termination right under this Section 10.1(h) until they have complied with Section 7.23 and given Buyer the five (5) Business Day response period referred to in Section 7.23.

    (a)        In the event that this Agreement is terminated pursuant to Section 10.1(b), 10.1(g) or 10.1(h), Sellers shall pay to Buyer by wire transfer of immediately available funds, within five (5) Business Days after such termination, a break-up fee (the “Break-Up Fee”) equal to $650,000; provided, that no Break-Up Fee shall be payable in respect of a termination of this Agreement pursuant to Section 10.1(b) unless (i) the breach in question is of a material provision of this Agreement and (ii) such breach is still existing on the later of (x) April 15, 2009 and (y) the thirtieth (30^th) day following delivery by Buyer to Sellers of written notice of such breach.

    (b)        In the event that this Agreement is terminated pursuant to Section 10.1(b), 10.1(g) or 10.1(h), Sellers shall pay to Buyer by wire transfer of immediately available funds, within five (5) Business Days after such termination, a cash amount equal to Buyer’s reasonable and documented out-of-pocket fees and expenses incurred in connection with the Transactions, up to a maximum of $400,000 (the “Expense Reimbursement”).

    (c)        The Break-Up Fee and/or the Expense Reimbursement, if payable in accordance with this Section 10.2, will be the sole and exclusive remedy of Buyer, whether at Law or in equity, in the event that Closing has not occurred or does not occur for any reason whatsoever, without regard to whether Buyer elects to terminate this Agreement pursuant to this Article X; provided, that if the Closing occurs, the Break-Up Fee and/or the Expense Reimbursement will not be payable and will not be the sole and exclusive remedy of Buyer hereunder. For the avoidance of doubt, both the Break-Up Fee and the Expense Reimbursement will be payable to Buyer in the event that this Agreement is terminated pursuant to Section 10.1(b) (if payable thereunder), 10.1(g) or 10.1(h).

    (d)        Sellers’ obligation to pay the Break-Up Fee and the Expense Reimbursement pursuant to this Section 10.2 shall survive termination of this Agreement and shall constitute an administrative expense of Sellers under Section 364(c)(1) of the U.S. Bankruptcy Code with priority over any and all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the U.S. Bankruptcy Code.

    (e)        Notwithstanding anything to the contrary herein, Sellers’ obligation to pay the Break-Up Fee and the Expense Reimbursement pursuant to this Section 10.2 is expressly subject to entry of the U.S. Bidding Procedures Order.

    (a)        Except in the case of a Liability arising from a cash payment obligation due to a party in respect of which the party seeking set-off has received a final judgment in an Action or Proceeding in accordance with Section 11.3 and 11.4, no party shall be entitled to set-off any Liabilities or Losses hereunder against any amounts due to such party under any other agreement with the other parties or any affiliate thereof.

    (b)        In no event shall any party be responsible or liable for any Losses that are consequential, in the nature of lost profits, diminution in the value of property, special or punitive or otherwise not actual damages.

    (c)        No Seller Entity shall have any Liability with respect to any Business Tangible Property, EMEA Tangible Property, Business Inventory or EMEA Business Inventory for any amount in excess of the value thereof as set forth on Schedule 2.1(a)(i), Schedule P(1)(a) or Schedule 5.6(b) (as updated in accordance with Section 3.1) (including in the case of any asset with a net book value of zero dollars ($0)), as set forth on the applicable schedule.

    (1)        Within one (1) Business Day after the later of (x) the approval of the U.S. Sale Order and (y) the approval of the Approval and Vesting Order, Buyer shall, or shall cause its designated Affiliate in the United States (“Buyer U.S.”) to offer employment, commencing on the first Business Day following the Closing Date, to each U.S. Employee other than a U.S. Leave Employee. The offer of employment shall be conveyed by means of a letter (the “U.S. Employment Offer”) in the form agreed upon by Buyer and NNI prior to the date hereof.

    (2)        Buyer shall, or shall cause Buyer U.S. to, ensure that each U.S. Employment Offer to each U.S. Employee includes (A)an annual base salary that is no less than the annual base salary listed with respect to such U.S. Employee in Schedule 5.12(a), (B) benefits no less favorable than those made available to similarly situated employees of Buyer or its Affiliates employed in the United States and with the additional terms described below in Section I(a)(5), (C) employment at a work location within twenty-five (25) miles of the work location listed with respect to such U.S. Employee in Schedule 5.12(a), (D) employment in the same position listed with respect to such U.S. Employee in Schedule 5.12(a) or another position for which such employee is qualified and that is substantially similar to the position listed in Schedule 5.12(a), and (E) eligibility for target incentive compensation that is at least equal to the target incentive compensation listed with respect to U.S. employee in Schedule 5.12 (a). Sales quotas and metrics will be in accordance with Buyer or Buyer U.S.’ requirements in the United States. The U.S. Employment Offer also shall include a policy statement of Buyer and Buyer U.S. regarding non-competition.

    (3)        Except as provided below with respect to U.S. Leave Employees, and subject to the occurrence of the Closing and Section I(a)(7), Buyer shall, or shall cause its Affiliates to, employ U.S. Employees accepting such U.S. Employment Offers on the first Business Day following the Closing Date on the terms and conditions in this Section I.

    (4)        Notwithstanding Section I(a)(2)(C), Buyer shall, and shall cause Buyer U.S. to, offer to employ any U.S. Employee who is a telecommuter, in Buyer U.S.‘s sole discretion, either (i) in the same location as set out in Schedule 5.12(a) or (ii) in a work location that is within twenty-five (25) miles of such individual’s home.

    (5)        Each U.S. Transferring Employee (and their eligible dependents, as applicable) shall, as of his or her Employment Transfer Date, cease to accrue benefits under the Nortel Employee Plans applicable to U.S. Employees (“Nortel U.S. Employee Plans”). Buyer shall ensure that each U.S. Transferring Employee (and their eligible dependents, as applicable) shall be immediately eligible to participate fully in and accrue benefits under Buyer Employee Plans applicable to similarly situated employees of Buyer or its Affiliates in the United States (“Buyer U.S. Employee Plans”) as of his or her Employment Transfer Date, and, for the twelve (12) month period following the Closing, at a cost to such U.S. Transferring Employee which is substantially similar in the aggregate to the cost to such U.S. Transferring Employee under similar Nortel U.S. Employee Plans immediately prior to his or her Employment Transfer Date, which cost amounts have been provided by NNI to Buyer. With respect to each U.S. Transferring Employee (and their eligible dependents, as applicable), Buyer shall cause all Buyer U.S. Employee Plans to waive any eligibility or waiting periods, evidence of insurability or pre-existing condition limitations with the exception of certain optional supplementary plans where special requirements may apply to all other similarly situated employees (e.g., group life insurance plans).

    (6)        U.S. Employment Offers shall remain open for acceptance by U.S. Employees for a period of seven (7) days.

    (7)        To the extent that NNI or its Affiliates have previously performed a background investigation on a U.S. Employee, as set forth on Schedule 5.12(a)(xv), Buyer shall not, and shall not permit Buyer U.S. to, condition such U.S. Employee’s U.S. Employment Offer upon a background investigation. The U.S. Employee Offer may state that Buyer and Buyer U.S. have a drug testing program and that all employees are subject to such drug testing at the discretion of Buyer and/or Buyer U.S. once employed by Buyer U.S. U.S. Employees will not be required to serve a probationary period.

    (8)        NNI and Buyer and their respective Affiliates shall work together in good faith to determine and coordinate the process of extending U.S. Employment Offers and communicating with U.S. Employees. Without limiting the generality of the foregoing, Buyer shall submit to NNI for review, prior to delivery of any U.S. Employment Offer, all data elements to be included in such offers and any other pertinent information relating to the offers.

    (1)        NNI or its applicable Affiliate shall be responsible for any and all Liabilities for claims of U.S. Transferring Employees under applicable workers’ compensation legislation for which NNI or its applicable Affiliate is legally responsible and which were existing as at, or accrued prior to the applicable Employment Transfer Date, including claims filed after the applicable Employment Transfer Date, but which are (A) based on accidents or injuries incurred during employment with NNI or its Affiliates or (B) determined by applicable worker’s compensation Law to relate to the period prior to the applicable Employment Transfer Date, but excluding any liabilities with respect to any reemployment obligations pursuant to such legislation in connection with U.S. Transferring Employees; and

    (2)        NNI or its applicable Affiliate, subject to and in a manner consistent with applicable workers’ compensation Law, shall be responsible for any and all workers’ compensation assessments, penalties, fines, levies, charges, surcharges or other amounts for which it is legally responsible and which may be assessed with respect to U.S. Transferring Employees which are attributable to the period prior to the applicable Employment Transfer Date.

    (1)        For a period of not less than twelve (12) months following the Closing, Buyer shall, and shall cause its Affiliates to (A) not change its Buyer U.S. Employee Plans in which U.S. Transferring Employees participate in a manner that would adversely affect the benefits to which such U.S. Transferring Employees are entitled to thereunder except for such change as is applied to employees of Buyer U.S. generally; and (B) maintain the annual base salary of each U.S. Transferring Employee unless Buyer or its Affiliates decides to reduce the base salary of its U.S. employees generally; provided, that no such reduction will exceed twenty (20) percent of such U.S. Transferring Employee’s annual base salary.

    (2)        For a period of not less than twelve (12) months following the Closing, Buyer shall provide notice of termination and severance pay to any U.S. Transferring Employee that is substantially similar to that which such employee would have received under NNI’s severance plan, as in effect on the Closing Date, following the crediting of such U.S. Transferring Employee with service as provided in Section I(f)(3).

    (3)        Buyer shall recognize the service date of each U.S. Transferring Employee, as set out in Schedule 5.12(a), for purposes of determining eligibility to participate in and to the extent applicable, vesting in and accruing benefits under the Buyer U.S. Employee Plans, and all other purposes, including with respect to the calculation of any compensation, benefit and/or long service award, and any severance, termination or retrenchment payment and membership, benefit accrual and entitlement to benefits under all of the Buyer U.S. Employee Plans which apply to the employees of Buyer or Buyer’s Affiliates employed in the United States.

    (4)        Under the vacation policy of Buyer, each U.S. Transferring Employee’s vacation accrual rate for a period of twelve (12) months after their Employment Transfer Date shall be the same as such U.S. Transferring Employee’s vacation accrual rate (i) as reflected in Schedule 5.12(a) under the vacation policy of Buyer following the crediting of such U.S. Transferring Employee with service as provided in Section I(f)(3). U.S. Transferring Employees whose annual vacation entitlement as set in Schedule 5.12(a) exceeds Buyer’s annual vacation entitlement after crediting service as provided in Section I(f)(3) will have their NNI vacation entitlement grandfathered for a period of twelve (12) months after their Employment Transfer Date, after which time Buyer’s vacation policy will apply in all respects.

    (1)        Within one (1) Business Day after the later of (x) the approval of the U.S. Sale Order and (y) the approval of the Approval and Vesting Order, Buyer shall cause its designated Affiliate in India (“Buyer India”) to offer employment, commencing at the Closing Date, to each India Employee other than an India Leave Employee by means of a letter (each, an “India Employment Offer”). Except as expressly agreed otherwise by the parties, Buyer shall cause Buyer India to make each India Employment Offer to each India Employee on terms and conditions, with respect to basic salary,  total annual salary, allowances (including HRA, LTA, phone, professional development, medical, conveyance, mileage, special allowance), provident fund, gratuity, medical insurance, leave days, carry forward of leave days and sick days, annual incentive plan, public holidays, working hours, notice period, parental leave, group life insurance and personal accident insurance, not in any way less favourable than the terms and conditions on which such India Employee is employed by Nortel India immediately prior to the Closing Date and on such terms and conditions as shall fulfill the requirements of section 25FF of the Indian Industrial Disputes Act 1947 so as to prevent Sellers, Nortel India and all of Sellers’ other Affiliates from incurring any Liability for any additional notice and compensation (in accordance with Section 25F of the Indian Industrial Disputes Act 1947) to any India Employee who accepts an India Employment Offer; and

    (2)        To the extent that any Seller or an Affiliate of any Seller has previously performed a background investigation on an India Employee, as set forth on Schedule 5.12(a)(xv), Buyer shall not, and shall not permit Buyer India to, condition such India Employee’s India Employment Offer upon a background investigation. The India Employee Offer may state that Buyer and Buyer India have a drug testing program and that all employees are subject to such drug testing at the discretion of Buyer and/or Buyer India once employed by Buyer India. India Employees will not be required to serve a probationary period.

    (3)        Prior to the delivery of any India Employment Offer to any India Employee, Buyer shall cause Buyer India to submit to NNI for its review the individual India Employee data elements to be included in such India Employment Offer, as well as any additional information that Nortel reasonably requires to confirm that each such India Employment Offer complies with the terms of this Section II(a). Buyer shall cause Buyer India to deliver to India Employees such India Employment Offers accompanied by all necessary information that may be reasonably required or requested by an India Employee to allow such employee to understand such India Employment Offer. Buyer shall ensure that the India Employment Offers remain open without modification for at least seven (7) calendar days following such delivery date. Subject to the occurrence of the Closing and Section II(a)(2), Buyer shall cause Buyer India to employ India Employees accepting such India Employment Offers as of the Closing Date on the terms and conditions contemplated in this Section II. Sellers or Nortel India and Buyer and Buyer India shall work together in good faith to determine and coordinate the process of extending India Employment Offers and communicating with India Employees.

    (1)        NNL shall cause Nortel India to pay to each India Transferring Employee the amount of compensation due to such employee with respect to accrued and unused vacation days due and owing to such India Transferring Employee as of his or her Employment Transfer Date by the date required under applicable Law. In any case, neither Buyer nor Buyer India shall bear any liability for accrued and unused vacation days due and owing to the India Transferring Employees as of their Employment Transfer Date. Buyer shall cause Buyer India to honor any vacation time off with respect to an India Transferring Employee approved by a manager of Nortel India prior to the Employment Transfer Date; provided, that such India Transferring Employee provides evidence of such approval.

    (2)        Buyer shall cause Buyer India to provide India Transferring Employees with an annual number of paid holidays that is equal to the annual number of paid holidays that Nortel India provided to the India Transferring Employees.

    (1)        The job position shall be the same or substantially similar position as that in which such India Employee is employed by Seller or Nortel India immediately prior to his or her Employment Transfer Date as set out in as set out in Schedule 5.12(a);

    (2)        The base salary, flexible components of salary and the cost of contributions in respect of gratuity and to the Provident Fund in respect of each India Employee shall in the aggregate be no less favorable than the sums set out in Schedule 5.12(a);

    (3)        Eligibility for total target cash compensation including salary, allowances, Gratuity, Provident Fund and bonuses in respect of each India Employee shall be no less favorable in the aggregate to that which is set out with respect to such India Employee in Schedule 5.12(a); and

    (4)        Buyer or Buyer India shall provide such other terms and conditions of employment (e.g., gap payments) as are required for Buyer or Buyer India to satisfy its covenant to offer to each India Employee employment on terms and conditions that are no less favorable compared to the terms and conditions on which such India Employee is employed by Nortel India immediately prior to the applicable Employment Transfer Date.

    (1)        Within one (1) Business Day after the later of (x) the approval of the U.S. Sale Order and (y) the approval of the Approval and Vesting Order,Buyer shall cause its designated Affiliate in Japan (“Buyer Japan”) to offer employment, commencing on the first Business Day following the Closing Date, to each Japan Employee other than a Japan Leave Employee, by means of a letter (each, a “Japan Employment Offer”). Buyer shall ensure that each Japan Employment Offer is on terms and conditions which in the aggregate are no less favorable to the applicable Japan Employee than those under which such Japan Employee is employed by Sellers’ applicable Affiliate in Japan (“Nortel Japan”) immediately prior to the Closing Date. The Japan Employment Offer also shall include a policy statement of Buyer and Buyer Japan regarding non-competition.

    (2)        To the extent that any Seller or any Affiliate of any Seller has previously performed a background investigation on a Japan Employee, as set forth on Schedule 5.12(a)(xv), Buyer shall not, and shall not permit Buyer Japan to, condition such Japan Employee’s Japan Employment Offer upon a background investigation. The Japan Employee Offer may state that Buyer and Buyer Japan have a drug testing program and that all employees are subject to such drug testing at the discretion of Buyer and/or Buyer Japan once employed by Buyer Japan. Japan Employees will not be required to serve a probationary period.

    (3)        Prior to the delivery of any Japan Employment Offer to any Japan Employee, Buyer shall cause Buyer Japan to submit to Sellers for their review the individual Japan Employee data elements to be included in such Japan Employment Offer, as well as any additional information that Sellers reasonably require to confirm that each such Japan Employment Offer complies with the terms of this Section III. Buyer shall cause Buyer Japan to deliver to the Japan Employees such Japan Employment Offers accompanied by all necessary information that may be reasonably required or requested by a Japan Employee to allow such employee to understand such Japan Employment Offer. Buyer shall ensure that the Japan Employment Offers shall remain open without modification for at least seven (7) calendar days following such delivery date. Subject to the occurrence of the Closing and Section III(a)(2), Buyer shall cause Buyer Japan to employ Japan Employees accepting such Japan Employment Offers as of the Closing Date on the terms and conditions contemplated in this Section III. Sellers or Nortel Japan and Buyer and Buyer Japan shall work together in good faith to determine and coordinate the process of extending Japan Employment Offers and communicating with Japan Employees.

    (1)        NNL shall cause Nortel Japan to pay to each Japan Transferring Employee the amount of compensation due to such employee with respect to the accrued and unused vacation days due and owing to such Japan Transferring Employee as of his or her Employment Transfer Date by the date required under applicable Law. In any case, neither Buyer nor Buyer Japan shall bear any liability for accrued and unused vacation days due and owing to the Japan Transferring Employees as of their Employment Transfer Date. Buyer shall cause Buyer Japan to honor any vacation time off with respect to a Japan Transferring Employee approved by a manager of Nortel Japan prior to the Employment Transfer Date; provided that such Japan Transferring Employee provides evidence of such approval.

    (2)        Buyer shall cause Buyer Japan to provide Japan Transferring Employees with an annual number of paid holidays that is equal to the annual number of paid holidays that Nortel Japan provides to the Japan Transferring Employees.

    (1)        The job position shall be the same or substantially similar position as that in which such Japan Employee is employed by Nortel Japan immediately prior to his or her Employment Transfer Date, as set out in Schedule 5.12(a);

    (2)        The base salary, cashable allowances including commuter allowances, pension and termination entitlements, total and permanent disability insurance, annual leave benefits and sick leave benefits, notice in respect of each Japan Employee shall in the aggregate be no less favorable than the sums set out in Schedule 5.12(a);

    (3)        Eligibility for bonuses including sales incentive plans in respect of each Japan Employee shall be no less favorable in the aggregate to that which is set out with respect to such Japan Employee in Schedule 5.12(a);

    (4)        Buyer or Buyer Japan shall provide such other terms and conditions of employment (e.g., gap payments) as are required for Buyer or Buyer Japan to satisfy its covenant to offer to each Japan Employee employment on terms and conditions that are no less favorable compared to the terms and conditions on which such Japan Employee is employed by Nortel Japan immediately prior to the applicable Employment Transfer Date; and

    (5)        NNL shall cause Nortel Japan to pay the amount of resignation/ termination benefits, including retirement allowances, due and owing to the Japan Transferring Employees upon their resignation from Nortel Japan which will occur as of his or her Employment Transfer Date. In any case, neither Buyer nor Buyer Japan shall bear any liability for accrued retirement allowances or resignation amounts due and owing to the Japan Transferring Employees as of their Employment Transfer Date.

    (a)        the Tangible Property set forth on Schedule P(1)(a) that is owned by such EMEA Seller (collectively, “EMEA Tangible Property”);

    (b)        all Specified Inventory (whether located at a business facility, in the possession of any contract manufacturer, or at any other location in the supply chain of such EMEA Seller or its Affiliates) owned by the EMEA Seller and exclusively relating to the Business (collectively, “EMEA Inventory”);

    (c)        subject to Section 5, (i) the Contracts set forth on Schedule P(1)(c) to which such EMEA Seller is a party (which relate exclusively to the Business), (ii) any New Exclusive Service Contracts (including any renewals of existing Exclusive Service Contracts) to which such EMEA Seller is a party and (iii) any other Contract to which such EMEA Seller is a party, the entry into of which Buyer consents to in accordance with Section 7.7 of the Agreement (which additional Contracts shall be set forth on the updated Schedule P(1)(c) delivered at Closing) (collectively, “EMEA Business Contracts”);

    (d)        to the extent capable of transfer lawfully without consent or to the extent all required consents to transfer lawfully have been obtained, (i) the Intellectual Property Assets, to the extent owned by such EMEA Seller, set forth on Schedule 2.1(d) to the Agreement and (ii) to the extent not covered by Section 1(d)(i), the Intellectual Property Assets (if any) owned by such EMEA Seller that are (x) used in Products as of the Closing Date and (y) have never been used in any other commercial products of any EMEA Seller, any other Seller and/or its Affiliates, in each case including all Intellectual Property Rights therein and the goodwill associated therewith and all rights to ▇▇▇ for past, present or future infringement and to collect and retain all damages and profits relating to the foregoing (collectively, the “EMEA Business Intellectual Property”; for the sake of clarity, no Prior Existing IP shall be deemed to be EMEA Business Intellectual Property); provided, that in the case of Intellectual Property Assets and Intellectual Property Rights that constitute patents, patent applications, domain names and websites, inventions and/or invention disclosures, only those patents, patent applications, domain names and websites, inventions and invention disclosures specifically listed on Schedule 2.1(d) shall constitute EMEA Business Intellectual Property and (to the extent the EMEA Sellers have title, if any) be assigned;

    (e)        to the extent capable of transfer lawfully without consent or to the extent all required consents to transfer lawfully have been obtained, the Prior Existing IP (if any), to the extent owned by such EMEA Seller, together with all Intellectual Property Rights therein and the goodwill associated therewith and all rights to ▇▇▇ for past, present or future infringement and to collect and retain all damages and profits relating to the foregoing (collectively, “EMEA Prior IP”); provided, that none of this Section 1(e), the assignment of the EMEA Prior IP to Buyer or anything else in the Agreement, including this Exhibit P, shall obligate any EMEA Seller or its representatives to (x) create, recreate, improve, prepare, develop or acquire any Intellectual Property Assets or Intellectual Property Rights that would otherwise be, or (y) document, create any physical or electronic embodiment not then existing of, or otherwise put into tangible form, any EMEA Prior IP, other than making copies of existing documents or files for delivery to Buyer.

    (f)        without prejudice to (x) Sections 1(d) or 1(e) (with respect to the right to ▇▇▇ for past, present or future infringement, and to collect and retain all damages and profits relating to the EMEA Business Intellectual Property or the EMEA Prior IP in respect of such infringement) and (y) Section 1(i), all claims, demands, deposits, causes of action, choses in action, rights of recovery, rights of set-off and rights of recoupment, in each case owned by such EMEA Seller and in each case relating exclusively to the operation of the Business after the Closing by Buyer (other than those related to Excluded Assets);

    (g)        to the extent capable of transfer lawfully without consent or to the extent all required consents to transfer lawfully have been obtained, all refunds and rebates, the rights to which are currently held by such EMEA Seller, relating exclusively to the operation of the Business after the Closing by Buyer;

    (h)        all sales literature, promotional literature and any other sales, advertising, marketing or promotional materials of such EMEA Seller that relate exclusively to the Products (to the extent such Products are transferred);

    (i)        subject to Section 5, all rights under EMEA Business Contracts to the extent that such rights relate to non-competition, confidentiality or non-solicitation obligations, whether relating to periods prior to or following the Closing;

    (j)        to the extent capable of transfer lawfully without consent or to the extent all required consents to transfer lawfully have been obtained, all rights of such EMEA Seller under or pursuant to all warranties, representations and guarantees made by suppliers, manufacturers and contractors relating directly to (i) EMEA Business Inventory, (ii) Product returns purchased by Buyer after Closing pursuant to Section 9.10 of the Agreement, (iii) the EMEA Business Tangible Property or (iv) products sold by such EMEA Seller in respect of which Buyer is obligated to fulfill warranty obligations pursuant to the Master Purchase Agreement; and

    (k)        subject to Section 6, copies of all general and financial records, ledgers, sales invoices, files, books and documents, correspondence and other files and records, including customer lists and sales records, of such EMEA Seller pertaining exclusively to the Products or the assets and rights transferred to Buyer (to the extent those Products or assets and rights are transferred) pursuant to the above paragraphs (a) through (k) of this Section 1 (the “EMEA Business Records”).

    (a)        Notwithstanding anything to the contrary contained in Section 1 or elsewhere in this Exhibit P or the Agreement, all properties, rights and assets of each EMEA Seller not expressly described in Section 1 (collectively, the “EMEA Excluded Assets”) are not part of the sale and purchase contemplated hereunder, are excluded from the EMEA Acquired Assets and shall remain the property of each EMEA Seller after the Closing. Without limiting the foregoing, the EMEA Excluded Assets include the assets, properties, contracts and rights described in Section 2.2 of the Agreement, mutatis mutandis.

    (b)        The Joint Administrators shall have the option at any time (but in no event within five (5) Business Days of the Closing Date (and the Main Sellers shall give the Joint Administrators at least 10 days’ prior notice in writing of their expected Closing Date)) between signing of the Agreement and Closing to remove all or any portion of the EMEA Tangible Property and/or EMEA Inventory from the category of EMEA Acquired Assets (so that such assets shall be treated as EMEA Excluded Assets) by written notice to the Buyer identifying which EMEA Tangible Property and/or EMEA Inventory is to be excluded, and the effect of such notice shall be that the Joint Administrators:

    (i)        shall not have any obligation to sell the EMEA Tangible Property and/or EMEA Inventory set out in such notice; and

    (ii)        Sections 1(a), 1(b), 1(g), 1(h) and 1(j) of this Exhibit P shall be deemed not to apply in respect of the EMEA Tangible Property and/or EMEA Inventory notified to the Buyer as having been excluded.

    (a)        all Liabilities under or arising from any EMEA Business Contract, other than any Liability arising under any EMEA Business Contract as a result of a breach, default or wrongful failure on the part of any EMEA Seller or its Affiliates to perform any covenant or obligation under such EMEA Business Contract required to be performed by it prior to the Closing;

    (b)        all Liabilities for or in respect of Taxes (other than Income Taxes) (i) that are the responsibility of Buyer pursuant to Section 9.1 of the Agreement or (ii) in connection with the operation of the Business or in respect of the EMEA Acquired Assets with respect to periods (or portions thereof) beginning on or after the Effective Time;

    (c)        all Liabilities with respect to defective Product claims and product liability claims and causes of action arising with respect to (i) products shipped or sold by or on behalf of Buyer or its Affiliates from or after the Closing and (ii) Product returns purchased by Buyer pursuant to Section 9.10 of the Agreement (but only to the extent of Buyer’s obligation to purchase such Product returns pursuant to Section 9.10 of the Agreement); and

    (d)        all Liabilities relating to Buyer’s and its Affiliates’ ownership or use of the EMEA Acquired Assets, or the conduct or operation of the Business, or the activities of Buyer and its Affiliates in connection with the EMEA Acquired Assets or the Business after the Closing.

    (a)        except as set forth in Section 3(b), all Liabilities of any EMEA Seller or its Affiliates for Taxes but including (i) Taxes that are the responsibility of the relevant EMEA Seller pursuant to Section 9.1 of the Agreement and (ii) all Taxes arising out of the operations of the Business (including ownership of the EMEA Acquired Assets) with respect to transactions occurring prior to or periods (or portions thereof) ending prior to the Effective Time;

    (b)        all Liabilities of any EMEA Seller under this Agreement or any other Transaction Document to which it is party;

    (c)        all Liabilities for legal, accounting and audit fees and any other expenses incurred by any EMEA Seller in connection with this Agreement, any other Transaction Document or consummation of the Transactions, including any fees, expenses or other payments incurred or owed by any EMEA Seller to any agent, broker, investment banker or other firm or Person retained or employed by any EMEA Seller in connection with the Transactions;

    (d)        all Liabilities of any EMEA Seller, to the extent relating to the EMEA Excluded Assets;

    (e)        except as provided in Section 3(c) and/or as specified in the Master Purchase Agreement, all Liabilities with respect to defective product claims and product liability claims and causes of action arising with respect to Products shipped by any EMEA Seller prior to Closing;

    (f)        all Liabilities of any EMEA Seller under or arising from the VSS Products prior to the Closing Date, including claims relating to warranty obligations or other Liabilities under or arising from Contracts to which any EMEA Seller is a party that have been entered into prior to the Closing Date with respect to VSS Products; provided, that Buyer and the other Buyer Entities shall be responsible for all Liabilities with respect to any implementation of the features or functionality of the VSS Products in whatsoever manner implemented by Buyer or its Affiliates, in accordance with Section 3(d), from and after the Closing;

    (g)        all Liabilities relating to any EMEA Seller’s ownership or use of any EMEA Acquired Assets, or the conduct or operation of the Business, or the activities of any EMEA Seller in connection with the EMEA Acquired Assets or the Business prior to the Closing, to the extent not an Assumed Liability; and

    (h)        all Liabilities relating to any other assets, operations, products, businesses or activities of any EMEA Seller that are not part of the Business.

    (a)        Nonassignable Contracts. In the event any EMEA Business Contract cannot be assigned (whether pursuant to any applicable Law or the terms of such EMEA Business Contract), then as of the Closing, this Agreement, to the extent permitted by Law and the terms of such EMEA Business Contract, shall constitute a full and equitable assignment by the applicable EMEA Seller to Buyer of all of the applicable EMEA Seller’s right, title and interest in and to, and all of the applicable EMEA Seller’s Liabilities under, such EMEA Business Contract, and Buyer shall be deemed the applicable EMEA Seller’s agent for purpose of completing, fulfilling and discharging all of the applicable EMEA Seller’s Liabilities thereunder. The parties shall, in the case of Buyer take all necessary steps and actions and in the case of the EMEA Sellers, take all such steps as are reasonable to provide Buyer with the benefits of such EMEA Business Contract, and to relieve the applicable EMEA Seller of the performance and other obligations thereunder, including entry into subcontracts for the performance thereof provided that:

    (i)        nothing in this Agreement shall operate to assign any EMEA Business Contract to the extent that to do so would result in a breach of the terms of that contract;

    (ii)        all (but not some only) of the Liabilities arising under the relevant EMEA Business Contract are assigned;

    (iii)        the performance of any actions pursuant to this Section 5 itself will not force the Joint Administrators to stay in office longer than they would have otherwise;

    (iv)        any cost of actions carried out pursuant to this Section 5 are at the EMEA Seller’s expense if the EMEA Seller in its sole discretion considers such expense reasonable but not otherwise, in which case such costs shall be at the expense of the Buyer; and

    (v)        any documents that the EMEA Sellers and/or the Joint Administrators are required to enter into in order to give effect to this Section 5 contain such exclusions of liability of the Joint Administrators necessary as to be consistent with this Exhibit P;

    (a)        the EMEA Sellers shall only be required to take such action as are reasonable and shall not be required to cause any other entity (including any Transferring Party) to take any actions;

    (b)        the performance of any actions pursuant to Section 2.5 of the Agreement itself will not force the Joint Administrators to stay in office longer than they would have otherwise;

    (c)        any cost of actions carried out pursuant to Section 2.5 of the Agreement is at the EMEA Seller’s expense if the EMEA Seller in its sole discretion considers such expense reasonable but not otherwise in which case such costs shall be at the expense of the Buyer,

    (d)        any documents to be entered into by the EMEA Sellers and/or the Joint Administrators pursuant to this Section 9 must contain such exclusions of liability of the Joint Administrators necessary as to be consistent with this Exhibit P.

    (a)        Sections 7.4, 7.6, 7.7, 7.8 and 7.10 of the Agreement shall apply to the EMEA Acquired Assets, the EMEA Sellers and Buyer, mutatis mutandis except that, in the case of Section 7.4 of the Agreement, the references to Monitor shall be a reference to the Joint Administrators;

    (b)        From the date hereof through the Closing Date, except as may be required in connection with or as a result of the Bankruptcy Proceedings and except to the extent inconsistent with the duties of the Joint Administrators and the objectives of the administration of the EMEA Sellers, the EMEA Sellers will use commercially reasonable efforts to:

    (i)        operate the Business only in the ordinary course of business consistent with past practice.

    (ii)        not dispose of the EMEA Acquired Assets and the business organization of the Business;

    (iii)        cause all transactions between Sellers and third parties relating to the Business to take place on arm’s length terms; and

    (iv)        comply, in all material respects, with all Laws and Orders applicable to the Business.

    (c)        Without limiting the generality of the foregoing and subject to the same provisos as stated in Section 13(b), from the date hereof through the Closing Date the EMEA Sellers shall not without the prior written consent of Buyer (other than with respect to Section 13(b)(v), for which Buyer shall have no right of prior written consent):

    (i)        sell, lease or transfer any assets or rights which would be included in the Acquired Assets or the Licensed IP, unless in the ordinary course of business consistent with past practice;

    (ii)        purchase additional Inventory exclusively relating to the Business unless contractually obligated to do so or to replenish a specific type of Inventory exclusively relating to the Business for which it is necessary to fill orders or otherwise in the ordinary course of business consistent with past practice;

    (iii)        amend, modify or terminate any EMEA Business Contract, except in the ordinary course of business consistent with past practice;

    (iv)        sell, assign, transfer, abandon or fail to maintain, (A) except in the ordinary course of business consistent with past practice, license or sublicense, or (B) except in the ordinary course of business consistent with past practice, enter into, amend or terminate any Contract with respect to, any EMEA Business Intellectual Property; or

    (v)        modify any pricing or discount terms with respect to the Products or services of the Business other than in the ordinary course of business consistent with past practice.

    (a)        in relation to Section 9.1 of the Agreement, the liability of each EMEA Seller (if any) shall be limited to the appropriate proportion of Transfer Taxes (as calculated under Section 9.1 of the Agreement) incurred in connection with the purchase and sale of the EMEA Acquired Assets sold by that EMEA Seller;

    (b)        in relation to Section 9.11 of the Agreement, the EMEA Sellers only obligations shall be (x) to redirect or forward relevant communications that are received by the Joint Administrators and (y) to instruct their employees to redirect or forward any relevant communications that are received by them;

    (c)        in relation to Section 9.13 of the Agreement, the EMEA Sellers shall only be required to provide such co-operation and assistance to the extent that (x) they actually hold sufficient relevant information to allow them to do so and (y) it is reasonable for the Buyer to consider that their co-operation and assistance is required; and

    (d)        in relation to Sections 9.1(a)(i) and 9.1(a)(ii) of the Agreement, references to “NNI” shall be taken instead to be references to the relevant EMEA Seller.

    (a)        Each EMEA Seller shall keep confidential in accordance with such EMEA Seller’s standards for protecting its own confidential information, and shall not use or disclose to any other Person (other than its Affiliates and its and their officers, directors, employees, agents and representatives), any Business Confidential Information, except as permitted by this Agreement. Each EMEA Seller shall only disclose Business Confidential Information to (x) its or its Affiliates’ officers, directors, employees, agents, auditors, lenders, consultants and other representatives who are legally bound by a confidentiality obligation to a Seller or its Affiliates no less protective of the Business Confidential Information than that contained in this Section 17(a) and who have a bona fide need to access the Business Confidential Information consistent with Sellers’ rights under this Agreement; and (y) the Joint Administrators who shall keep such Business Confidential Information confidential.

    (b)        Each EMEA Seller shall keep confidential in accordance with such EMEA Seller’s standards for protecting its own confidential information, any Non-Exclusive Confidential Information; provided, that nothing in this Agreement shall prevent or limit in any way whatsoever the right of an EMEA Seller or its Affiliates to utilize or disclose the Non-Exclusive Confidential Information, without need to obtain consent therefor from Buyer, or otherwise impose obligations on such EMEA Seller or its Affiliates in respect of Non-Exclusive Confidential Information other than what such EMEA Seller or its Affiliates would otherwise undertake for Seller Confidential Information.

    (c)        Buyer shall, and shall cause its Affiliates to, keep confidential in accordance with Buyer’s standards for protecting its own confidential information, and shall not use or disclose to any other Person (other than its Affiliates and its and their officers, directors, employees, agents and representatives), any Seller Confidential Information, except as permitted by this Agreement. Buyer shall only disclose Seller Confidential Information to its or its Affiliates’ officers, directors, employees, agents, auditors, lenders, consultants and other representatives who are legally bound by a confidentiality obligation to Buyer or its Affiliates no less protective of the Seller Confidential Information than that contained in this Section 17 and who have a bona fide need to access the Seller Confidential Information consistent with Buyer’s rights under this Agreement.

    (d)        Notwithstanding anything to the contrary in this Section, any party may disclose Confidential Information:

    (i)       if and to the extent such Confidential Information is required by subpoena or Order to be disclosed;

    (ii)       to a Governmental or Regulatory Body;

    (iii)       pursuant to any Bankruptcy Proceeding;

    (iv)       to the extent such disclosure is otherwise required by applicable Law or requirement of any stock exchange on which the shares or stock of the Person in question are listed;

    (v)       in connection with a party’s exercise and enforcement of any rights or remedies provided under this Agreement; or

    (vi)       to the extent such disclosure is required for financial or tax reporting purposes of the applicable party or its Affiliates.

    (e)        If any Person is requested or required (by subpoena, court order or similar process) to disclose any Confidential Information as provided in Section 17(d)(i), the Person from which the disclosure is sought shall (i) provide the applicable party with prompt written notice of such request or requirement and (ii) make reasonable efforts to cooperate with the applicable party so that such party may seek a protective order or other appropriate remedy or protection. If such protective order or other remedy or protection is not obtained, or the applicable party waives compliance with the provisions of this Agreement, the Person from which the disclosure is sought shall use reasonable efforts to disclose only that portion of the Confidential Information that is legally requested or required to be disclosed.

    (f)        The Joint Administrators shall be at liberty to disclose the terms of this Agreement to any court or to any liquidator and to any of their officers and representatives and show appropriate figures in their administration records, accounts and returns.

    (g)        Nothing in this Section 17 shall prevent the EMEA Sellers or their Affiliates from disclosing either Business Confidential Information or Non-Exclusive Confidential Information to other prospective purchasers of the Business that have executed a confidentiality agreement with an EMEA Seller or an Affiliate thereof.

    (a)        Notwithstanding that this Agreement shall have been signed by the Joint Administrators both in their capacities as joint administrators of the EMEA Sellers for and on behalf of the EMEA Sellers and in their personal capacities, it is hereby expressly agreed and declared that no personal liability under or in connection with this Agreement shall fall on the Administrators or their firm, partners, employees, agents, advisers or representatives whether such liability would arise under paragraph 99(4) of Schedule B1 to the Insolvency ▇▇▇ ▇▇▇▇ or otherwise howsoever.

    (b)        The Joint Administrators are party to this Agreement in their personal capacities only for the purpose of receiving the benefit of this Exhibit P and the rights, exclusions, limitations, undertakings and covenants in their favour contained in this Exhibit P. The Buyer acknowledges and agrees that in the negotiation and the completion of this Agreement the Joint Administrators are acting only as agents for and on behalf of the EMEA Sellers and without any personal liability whatsoever.

    (c)        The Buyer further acknowledges the following:

    (i)        it has entered into this Agreement without reliance on any warranties or representations made by the EMEA Sellers or by any of its employees, agents or representatives, or by the Joint Administrators or any of their firm, partners, employees, agents, advisors or representatives and (save in respect of fraudulent misrepresentation) it shall not have any remedy in respect of any misrepresentation or untrue statement made by or on behalf of any other party to this Agreement; and

    (ii)        neither the EMEA Sellers nor the Joint Administrators shall incur any liability to it by reason of any fault or defect in all or any of the EMEA Acquired Assets.

    (a)        The provisions of Article XI of the Agreement shall apply to the terms of this Exhibit P, mutatis mutandis; provided, that Buyer, the EMEA Sellers and the Joint Administrators may amend this Exhibit P without the consent of the other Sellers.

    (b)        Without prejudice to Section 18(a), to the extent that the benefit of any provision in this Exhibit or the Agreement is expressed to be conferred upon:

    (i)        the Joint Administrators, where necessary to give effect to any such provision the EMEA Sellers shall hold such benefit as trustees for each Joint Administrator; and

    (ii)        the firm, partners, employees, agents, advisers and/or representatives of the Joint Administrators, where necessary to give effect to any such provision the Joint Administrators (or failing that the EMEA Sellers) shall hold such benefit as trustees for each such person.

    (c)        The provisions of the Agreement shall survive for the benefit of the Joint Administrators, their firm, partners, employees, agents, advisers and representatives notwithstanding the discharge of the Joint Administrators as joint administrators of the EMEA Sellers and shall be in addition to and not in substitution for any other right or indemnity or relief otherwise available to each of them.

    (d)        To the extent that there is any inconsistency between the terms of this Exhibit P and the Agreement, this Exhibit P shall prevail.