Assets of Online Advertising Company

Sale of assets of Sizmek Inc. which includes:

1. all equipment, machinery or other tangible personal property used or held for use in connection with the Business, including those items listed or described in Schedule 2.1(a) hereto, and any warranty rights or claims associated therewith;
2. subject to the timing and process contemplated by the Sale Order, the Contracts, agreements, contract rights, leases of real property, leases of equipment, machinery or other tangible personal property license agreements, customer contracts, purchase and sales orders (if any), financial instruments, royalty agreements, third party guaranties, indemnifications, arrangements and understandings, whether oral or written, to which any Business Entity is a party (whether or not legally bound thereby) and which relate to the Purchased Assets and the operation of the Business and which are specifically listed or described in Schedule 2.1(b) hereto as such schedule may be amended pursuant to Section 2.3(c) below (the “Assumed Contracts”), it being understood that Purchaser shall be solely responsible for payment of, and shall pay, the Purchaser Cure Payments and Sellers shall be solely responsible for payment of, and shall pay, the Sellers Cure Payments (except to the extent such Sellers Cure Payments are paid by Purchaser on Sellers’ behalf in accordance with the terms of this Agreement);
3. all permits necessary for the operation of the Business or the ownership of the Purchased Assets, including the permits specifically listed or described in Schedule 2.1(c) transferable to Purchaser pursuant to their terms and in accordance with applicable Laws;
4. all intellectual property and intellectual property rights (including all software and documentation) which relate to, or are used or held for use, in connection with, the Business (the “Company IP”) other than Open Source Materials, including the Company IP listed or described in Schedule 2.1(d) hereto, subject to explicit or implicit rights for continued non-primary use of such Company IP by the Business Entities solely outside the Business;
5. all prepaid items and expenses related to the Business or the Purchased Assets, including those specifically listed or described in Schedule 2.1(e) hereto;
6. all books and records including customer or client lists, files, documentation, records and the related documentation related to the Business, the Purchased Assets or Assumed Liabilities, other than those described in Section 2.2(e); (g) all claims, indemnities, warranties, guarantees, refunds, causes of action, rights of recovery, rights of set-off and rights of recoupment of every kind and nature (whether or not known or unknown or contingent or non-contingent) related to the Business, the Purchased Assets or the Assumed Liabilities (other than (i) those on insurance policies of the Business Entities or (ii) claims otherwise prosecutable by the chapter 11 estate for the benefit of unsecured creditors, as more fully described in Section 2.2(n) below);
7. all deposits and prepayments held by third parties pursuant to any Assumed Contract; and
8. all other assets, properties, and rights used in the Business that are not defined below as Excluded Assets.