ASSET PURCHASE AGREEMENTAsset Exchange Agreement |
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Exhibit
2.1
ASSET
PURCHASE AGREEMENT
BY
AND BETWEEN
INTEL
CORPORATION
AND
EMCORE
CORPORATION
DATED
AS OF DECEMBER 17, 2007
TABLE
OF CONTENTS
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Page No.
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ARTICLE
I DEFINITIONS
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4
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1.01
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Definitions
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4
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1.02
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Defined
Terms Generally
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4
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ARTICLE
II TRANSFER OF ASSETS
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5
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2.01
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Transferred
Assets
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5
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2.02
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Excluded
Assets
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6
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2.03
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Assumed
Liabilities
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7
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2.04
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Excluded
Liabilities
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7
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2.05
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Assignment
of Contracts and Rights.
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8
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2.06
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Consideration
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9
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2.07
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Closing
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10
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2.08
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Accounting
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10
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ARTICLE
III REPRESENTATIONS AND WARRANTIES OF SELLER
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10
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3.01
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Existence
and Good Standing
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11
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3.02
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Authorization
and Enforceability
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11
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3.03
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Governmental
or Other Authorization
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11
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3.04
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Non-Contravention
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11
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3.05
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Personal
Property
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12
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3.06
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Real
Property
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12
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3.07
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Litigation
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12
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3.08
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Transferred
Contracts
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12
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3.09
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Compliance
with Applicable Laws
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13
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3.10
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Tax
Matters.
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13
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3.11
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Intellectual
Property.
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13
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3.12
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Employee
Matters.
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15
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3.13
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Financial
Information.
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15
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3.14
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Absence
of Certain Changes
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16
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3.15
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Environmental
Matters.
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16
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3.16
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Product
Warranties
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17
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3.17
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Transferred
Assets
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17
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3.18
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Customers
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17
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3.19
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Advisory
Fees
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17
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3.20
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Disclaimer
of Warranties
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17
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ARTICLE
IV REPRESENTATIONS AND WARRANTIES OF BUYER
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18
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4.01
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Existence
and Good Standing
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18
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4.02
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Authorization
and Enforceability
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18
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4.03
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Governmental
or Other Authorization
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18
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4.04
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Non-Contravention
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18
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Page
No.
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4.05
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Capital
Stock of Buyer
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19
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4.06
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Buyer
SEC Reports
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19
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4.07
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Absence
of Certain Changes
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20
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4.08
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Litigation
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20
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4.09
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Compliance
with Applicable Laws
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20
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4.10
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Financing
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20
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4.11
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Export
Compliance
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20
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4.12
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Advisory
Fees
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20
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4.13
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Reliance
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21
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4.14
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Investigation
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21
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ARTICLE
V COVENANTS
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21
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5.01
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Access
to Information.
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21
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5.02
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Additions
to and Modification of Schedules; Notification
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22
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5.03
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Compliance
with Terms of Governmental Approvals and Consents.
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23
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5.04
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Use
of Marks
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23
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5.05
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Cooperation
in Third Party Litigation
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23
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5.06
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Assignments
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24
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5.07
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Consents
and Filings;
Further Assurances
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24
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5.08
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Public
Announcements; Customer Contacts
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25
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5.09
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Allocation
of Expenses.
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25
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5.10
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Allocation
of Consideration
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27
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5.11
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Accounts
Receivable.
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27
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5.12
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Accounts
Payable
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28
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5.13
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Bulk
Sales Laws
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28
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5.14
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Operation
of the Business Prior to Closing
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28
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5.15
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Employees
Matters.
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29
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5.16
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Non-Compete
Agreement.
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30
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5.17
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Non-Solicitation
Agreements.
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31
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5.18
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Protection
of Privacy
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31
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5.19
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Business
Financial Statements
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31
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5.20
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Export
Compliance
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32
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5.21
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Lease
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32
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5.22
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Confidentiality.
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33
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5.23
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Availability
of Information; Registration Statement
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33
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ARTICLE
VI CONDITIONS TO CLOSING
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34
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6.01
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Conditions
to Obligations of Buyer
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34
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6.02
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Conditions
to Obligations of Seller
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35
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ARTICLE
VII INDEMNIFICATION
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35
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7.01
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General
Survival
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35
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7.02
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Indemnification.
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36
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7.03
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Manner
of Indemnification.
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37
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7.04
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Third-Party
Claims
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38
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7.05
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Exclusive
Remedy
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39
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2
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Page
No.
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7.06
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Subrogation
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39
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7.07
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Damages
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40
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ARTICLE
VIII TERMINATION
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40
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8.01
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Grounds
for Termination
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40
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8.02
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Effect
of Termination
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41
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ARTICLE
IX MISCELLANEOUS
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41
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9.01
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Notices
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41
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9.02
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Notice
of Change of Control
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42
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9.03
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Amendments;
Waivers.
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43
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9.04
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Expenses
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43
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9.05
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Successors
and Assigns
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43
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9.06
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Governing
Law
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43
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9.07
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Counterparts;
Effectiveness
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43
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9.08
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Entire
Agreement
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43
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9.09
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Captions
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44
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9.10
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Severability
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44
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