2Excluded Assets. Notwithstanding anything herein to the contrary, no Seller Party shall sell, transfer, convey, assign or deliver to Buyer, and Buyer shall not acquire or have any rights to acquire, any Seller Party’s right, title and interest in and to any of the following: (a) any cash on hand or cash equivalents, bank accounts, bank deposits, investment accounts, lockboxes, certificates of deposit, benefits of credits, marketable securities or investments in other Persons, certificates of deposit or treasury bills, and other similar items of any Seller Party, whether or not attributable to the RFG Business; (b) any Seller Party’s rights to claim refunds and causes of action not Related to the RFG Business; (c) all rights of, and all consideration received by, the Seller Parties or their Affiliates under this Agreement or any Transaction Document; (d) all Proprietary Rights of the Seller Parties not Related to the RFG Business, including, for the avoidance of doubt, the Calavo trademark or any derivative thereof and any Proprietary Right listed on Schedule 2.2(d); (e) any Permits other than the Assigned Permits; (f) all Tax Returns of the Seller Parties; (g) any Tax refunds, including all net operating losses, Relating to the RFG Business or the Purchased Assets for Pre-Closing Tax Periods; (h) any Contract other than the Assigned Contracts; (i) all equity and other interests in the Seller Parties or any of Seller Party’s Subsidiaries, Affiliates, joint ventures or partnerships; (j) the Personal Property other than the Transferred Personal Property; (k) all assets used in connection with any Seller Party’s corporate functions (including, but not limited to, the Seller Parties’ Organizational Documents), tax records, taxpayer and other identification numbers, seals, minute books and stock transfer books and other corporate records; (l) all of the assets owned and used by any Seller to perform legal, finance, accounting, information technology, human resources or other administrative services or corporate functions, wherever located, and by whomever possessed; (m) all insurance policies and binders maintained by any Seller Party or its Affiliates, and all rights of action, lawsuits, benefits, claims, demands, rights of recovery and set-off, and proceeds, under or with respect to such insurance policies; (n) any RFG Employee Plan, and the assets related thereto; (o) all Books and Records other than the Transferred Books and Records; (p) all personnel records as required by California Law; provided that the Parties acknowledge and agree that the Seller Parties have provided to Buyer copies of such personnel records as appropriately redacted; (q) all real property owned, operated, leased, subleased or licensed by, or for which a right to use or occupy has been granted to, any Seller Party, other than the RFG Leased Facilities and the RFG Facility; (r) all rights of any Seller Party relating to prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees, other than the Deposits; (s) all rights to causes of action, rights of recovery, rights of set-off of any kind, lawsuits, claims, bankruptcy claims or proofs of claims and demands of any nature other than as set forth in Section 2.1(g); (t) all attorney work product and privileged communications; (u) except as otherwise expressly provided in this Agreement, all of the assets, properties and rights of every kind, nature, character and description (accrued, contingent or otherwise), tangible and intangible, real, personal or mixed, which are owned, used or held for use by a Seller Party that are not Related to the RFG Business (including the avocado or other guacamole derivative product business); (v) the Georgia Tax Credits; and (w) the assets, properties and rights specifically set forth on Schedule 2.2(w) (the “Specifically Excluded Assets”). All of the foregoing assets, properties and contractual rights are hereinafter sometimes collectively referred to as the “Excluded Assets,” and such Excluded Assets are not being sold to Buyer pursuant to this Agreement.
Appears in 1 contract
2Excluded Assets. (a) Notwithstanding anything herein to any other provision of this Agreement, the contraryPurchased Assets shall not include, no and the Seller Party Entities hereby retain and shall not sell, transfer, convey, assign or deliver to BuyerPurchaser, any property or assets of the Seller Entities not expressly set forth in Section 1.1 or any property or assets specifically set forth below (collectively, the “Excluded Assets”), which include the following:
(i) any cash, checks, money orders, marketable securities, short-term instruments and other cash equivalents, funds in time and demand deposits or similar accounts, and Buyer shall any evidence of indebtedness issued or guaranteed by any Governmental Authority, in each case, held by the Seller Entities (whether or not acquire arising from the conduct of the Business);
(ii) any accounts receivable of the Seller Entities, including any accounts receivable of the Business as of the Closing (collectively, the “Accounts Receivable”);
(iii) the items of inventory in the quantities described in Schedule 1.2(a)(iii) (the “Excluded Inventory”);
(iv) the Seller Marks;
(v) any Intellectual Property Rights of the Seller Entities other than the Seller Intellectual Property;
(vi) (A) all Tax losses and credits, Tax loss and credit carry forwards and other Tax attributes of the Seller Entities, and (B) all deposits or have advance payments with respect to Taxes, and any claims, rights to acquire, any Seller Party’s right, title and interest in and to any refund, credit or reduction of Taxes, in each case with respect to the Purchased Assets for any Pre-Closing Tax Period;
(vii) all Tax Returns and other Tax records of the following:Seller Entities or their Affiliates not relating exclusively to the Business, the Purchased Assets or the Assumed Liabilities;
(aviii) all intercompany accounts receivable and intercompany notes where the obligor is a Seller Entity or any Affiliate of a Seller Entity;
(ix) any cash on hand or cash equivalents, bank accounts, bank deposits, investment accounts, lockboxes, certificates of deposit, benefits of credits, marketable securities or investments in other Persons, certificates of deposit or treasury bills, and other similar items of claims under insurance policies maintained by any Seller PartyEntities or their Affiliates;
(x) any laptops, whether desktops, computer peripherals or not attributable related computer hardware other than the assets included among the Purchased Assets pursuant to Section 1.1(i) above;
(xi) all rights of the RFG BusinessSeller Entities under this Agreement and any other Transaction Agreement;
(xii) the lease agreement, dated as of April 15, 2014 and amended as of February 15, 2018, for approximately 27,810 square feet of office space in Needham, Massachusetts; and
(xiii) the assets of the Seller Entities identified on Schedule 1.2.
(b) any Seller PartyWithout limiting Purchaser’s rights to claim refunds and causes of action under Article 13, Purchaser expressly acknowledges that it is not Related acquiring any rights whatsoever to the RFG Business;
(c) all rights of, and all consideration received by, the Seller Parties or their Affiliates under this Agreement or any Transaction Document;
(d) all Proprietary Intellectual Property Rights of the Seller Parties not Related to the RFG Business, including, for the avoidance of doubt, the Calavo trademark or any derivative thereof and any Proprietary Right listed on Schedule 2.2(d);
(e) any Permits other than the Assigned Permits;
(f) all Tax Returns of the Seller Parties;
(g) any Tax refunds, including all net operating losses, Relating to the RFG Business or the Purchased Assets for Pre-Closing Tax Periods;
(h) any Contract other than the Assigned Contracts;
(i) all equity and other interests in the Seller Parties or any of Seller Party’s Subsidiaries, Affiliates, joint ventures or partnerships;
(j) the Personal Property other than the Transferred Personal Property;
(k) all assets used in connection with any Seller Party’s corporate functions (including, but not limited to, the Seller Parties’ Organizational Documents), tax records, taxpayer and other identification numbers, seals, minute books and stock transfer books and other corporate records;
(l) all of the assets owned and used by any Seller to perform legal, finance, accounting, information technology, human resources or other administrative services or corporate functions, wherever located, and by whomever possessed;
(m) all insurance policies and binders maintained by any Seller Party or its Affiliates, and all rights of action, lawsuits, benefits, claims, demands, rights of recovery and set-off, and proceeds, under or with respect to such insurance policies;
(n) any RFG Employee Plan, and the assets related thereto;
(o) all Books and Records other than the Transferred Books and Records;
(p) all personnel records as required by California Law; provided that the Parties acknowledge and agree that the Seller Parties have provided to Buyer copies of such personnel records as appropriately redacted;
(q) all real property owned, operated, leased, subleased or licensed by, or for which a right to use or occupy has been granted to, any Seller Party, other than the RFG Leased Facilities and the RFG Facility;
(r) all rights of any Seller Party relating to prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees, other than the Deposits;
(s) all rights to causes of action, rights of recovery, rights of set-off of any kind, lawsuits, claims, bankruptcy claims or proofs of claims and demands of any nature other than as set forth in Section 2.1(g);
(t) all attorney work product and privileged communications;
(u) except as otherwise expressly provided in this Agreement, all of the assets, properties and rights of every kind, nature, character and description (accrued, contingent or otherwise), tangible and intangible, real, personal or mixed, which are owned, used or held for use by a Seller Party Entities that are not Related to the RFG Business (including the avocado or other guacamole derivative product business);
(v) the Georgia Tax Credits; and
(w) the assets, properties and rights specifically set forth on Schedule 2.2(w) (the “Specifically Excluded Assets”). All of the foregoing assets, properties and contractual rights are hereinafter sometimes collectively referred to as the “Excluded Assets,” and such Excluded Assets are not being sold to Buyer pursuant to this Agreement.
Appears in 1 contract
2Excluded Assets. Notwithstanding anything herein to the contrary, no Seller Party The Purchased Assets shall sell, transfer, convey, assign or deliver to Buyernot include, and Buyer there shall not acquire be excluded from the sale, conveyance, assignment, transfer or have any rights delivery to acquirePurchaser hereunder, any and each of the Seller Party’s and its Affiliates shall retain all of their existing right, title and interest in and to to, any of the following:
assets, properties, rights or interests other than those specifically listed or described in Section 2.1 (a) any cash on hand all such assets, properties, rights or cash equivalentsinterests not so listed or described, bank accounts, bank deposits, investment accounts, lockboxes, certificates of deposit, benefits of credits, marketable securities or investments in other Persons, certificates of deposit or treasury bills, and other similar items of any Seller Party, whether or not attributable to the RFG Business;
(b) any Seller Party’s rights to claim refunds and causes of action not Related to the RFG Business;
(c) all rights of, and all consideration received bycollectively, the Seller Parties or their Affiliates under this Agreement or any Transaction Document;
(d) all Proprietary Rights of the Seller Parties not Related to the RFG Business, including, for “Excluded Assets”). For the avoidance of doubt, the Calavo trademark Excluded Assets shall include, and the Purchased Assets shall not include:
(a) all Seller Products;
(b) all Accounts Receivable at any time due and owed to the Seller or any derivative thereof of its Affiliates, including Accounts Receivable arising from sales of any of the Product by or on behalf of the Seller or any of its Affiliates on or prior to the Closing Date;
(c) any losses, loss carryforwards and rights to receive refunds, credits and loss carryforwards with respect to any Proprietary Right listed on Schedule 2.2(d); and all Taxes of the Seller or any of its Affiliates;
(d) any refund of Taxes if a liability for such Taxes would constitute a Retained Liability;
(e) any Permits all Tax Returns, Tax records, related workpapers and other than similar Tax information of the Assigned PermitsSeller and its Affiliates;
(f) all Tax Returns the books and records of the Seller Partiesand its Affiliates other than the Books and Records transferred pursuant to Section 2.1(i);
(g) any Tax refundscurrent and prior insurance policies and insurance Contracts, including all net operating lossesrights of any nature with respect thereto, Relating to together with any claim, action or other right that the RFG Business Seller or the Purchased Assets any of its Affiliates may have for Pre-Closing Tax Periodsinsurance coverage under any such insurance policies or Contracts;
(h) any Contract Intellectual Property or other than intellectual property right that is not included in the Assigned ContractsPurchased Intellectual Property, the Purchased Domain Names or the Purchased Know-how, including the Seller Names and Marks;
(i) all equity and other interests in Contracts (including the Excluded Contracts) of the Seller Parties or any of Seller Party’s Subsidiaries, Affiliates, joint ventures or partnershipsits Affiliates other than the Purchased Contracts;
(j) the Personal Property other than the Transferred Personal Propertyany leased or owned real property;
(k) all assets used in connection with any Seller Party’s corporate functions (including, but not limited to, IT equipment and all other tangible personal property of the Seller Parties’ Organizational Documents), tax records, taxpayer and its Affiliates other identification numbers, seals, minute books than the Purchased Inventory and stock transfer books and other corporate recordsthe Purchased Equipment;
(l) any and all obligations, and all assets arising out of or related to Seller’s employee benefit plans, programs or arrangements (including the Business Benefit Plans) for the present or past employees, independent contractors, consultants, or agents of the assets owned and used by any Seller to perform legal, finance, accounting, information technology, human resources or other administrative services or corporate functions, wherever located, and by whomever possessedSeller;
(m) all insurance policies cash and binders maintained cash equivalents (including marketable securities and short term investments), corporate credit cards, and deposits held by the Seller or any Seller Party or of its Affiliates, and all rights of actionin each case, lawsuits, benefits, claims, demands, rights of recovery and set-off, and proceeds, under or with respect including those related to such insurance policiesthe Business;
(n) all guaranties, warranties, indemnities, rights of contribution, rights to refunds, rights of reimbursement and other rights of recovery and similar rights that have been made by any RFG Employee Planpredecessors in title, manufacturers or suppliers and other third parties relating to the assets related theretoExcluded Assets;
(o) all Books and Records other than the Transferred Books and Recordsten or eleven digit three-segment numbers identified as a National Drug Code that is associated with any Product as assigned by FDA to Seller (“Seller NDC Codes”);
(p) all personnel records as required by California Law; provided that the Parties acknowledge and agree that the Seller Parties have provided to Buyer copies of such personnel records as appropriately redacted;
(q) all real property owned, operated, leased, subleased or licensed by, or for which a right to use or occupy has been granted to, any Seller Party, other than the RFG Leased Facilities and the RFG Facility;
(r) all rights of any Seller Party relating to prepaid expenses, credits, advance payments, claims, securitycounterclaims, refundsdefenses, causes of action, demands, judgments, rights of recovery, rights of set-off, rights of recoupmentsubrogation and all other rights of any kind against any third party, deposits, charges, sums and fees, other than relating to any Retained Liabilities or the Deposits;Excluded Assets; or
(sq) all rights to causes of action, rights of recovery, rights of set-off of any kind, lawsuits, claims, bankruptcy claims or proofs of claims and demands of any nature other than as set forth in Section 2.1(g);
(t) all attorney work product and privileged communications;
(u) except as otherwise expressly provided in this Agreement, all of the assetsSeller’s and its Affiliates’ rights under this Agreement and the Ancillary Agreements and all books, properties and rights of every kinddocuments, naturerecords, character and description (accrued, contingent files or otherwise), tangible and intangible, real, personal or mixed, which are owned, used or held for use by a Seller Party that are not Related other items relating to the RFG Business (including negotiation and consummation of this Agreement and the avocado other transactions contemplated by this Agreement or other guacamole derivative product business);
(v) the Georgia Tax Credits; and
(w) Ancillary Agreements or otherwise prepared in connection with the assets, properties and rights specifically set forth on Schedule 2.2(w) (the “Specifically Excluded Assets”). All sale of the foregoing assetsPurchased Assets, properties including all confidential communications with legal counsel representing the Seller or its Affiliates and contractual rights are hereinafter sometimes collectively referred the right to as the “Excluded Assets,” and such Excluded Assets are not being sold to Buyer pursuant to this Agreementassert attorney-client privilege with respect thereto.
Appears in 1 contract
2Excluded Assets. Notwithstanding anything herein to the contrarySection 2.1, no Seller Party shall sell, transfer, convey, assign Buyer expressly understands and agrees that Buyer is not purchasing or deliver to Buyeracquiring, and Buyer shall Seller is not acquire selling or have any rights to acquireassigning, any Seller Party’s right, title and interest in and to any of the following:following assets, properties and rights of Sellers (the “Excluded Assets”):
(a) any cash on hand or cash equivalents, bank accounts, bank deposits, investment accounts, lockboxes, all of Sellers’ certificates of deposit, benefits of credits, marketable securities or investments in other Persons, certificates of deposit or treasury bills, incorporation and other similar items of any Seller Partyorganizational documents, whether or not attributable qualifications to the RFG Business;
(b) any Seller Party’s rights conduct business as a foreign entity, arrangements with registered agents relating to claim refunds and causes of action not Related to the RFG Business;
(c) all rights of, and all consideration received by, the Seller Parties or their Affiliates under this Agreement or any Transaction Document;
(d) all Proprietary Rights of the Seller Parties not Related to the RFG Business, including, for the avoidance of doubt, the Calavo trademark or any derivative thereof and any Proprietary Right listed on Schedule 2.2(d);
(e) any Permits other than the Assigned Permits;
(f) all Tax Returns of the Seller Parties;
(g) any Tax refunds, including all net operating losses, Relating to the RFG Business or the Purchased Assets for Pre-Closing Tax Periods;
(h) any Contract other than the Assigned Contracts;
(i) all equity and other interests in the Seller Parties or any of Seller Party’s Subsidiaries, Affiliates, joint ventures or partnerships;
(j) the Personal Property other than the Transferred Personal Property;
(k) all assets used in connection with any Seller Party’s corporate functions (including, but not limited to, the Seller Parties’ Organizational Documents), tax recordsforeign qualifications, taxpayer and other identification numbers, seals, minute books and books, stock transfer books books, stock certificates and other corporate recordsdocuments relating to the organization, maintenance and existence of any Seller as a corporation, limited liability company or other entity; 4848-1716-0445
(b) all equity securities of any Seller and all net operating losses of any Seller;
(lc) all of the assets owned and used by any Seller to perform legal, finance, accounting, information technology, human resources or other administrative services or corporate functions, wherever located, and by whomever possessedExcluded Contracts;
(md) all insurance policies and binders maintained by any Seller Party or its Affiliates, and all rights of action, lawsuits, benefits, claims, demands, rights of recovery and set-off, and proceeds, under or with respect to such insurance policiesthe Excluded Claims;
(ne) any RFG Employee Plan, and the assets related thereto;
(o) all Books and Records other than the Transferred Books and Records;
(p) all personnel records as required by California Law; provided that the Parties acknowledge and agree that the Seller Parties have provided loans or notes payable to Buyer copies of such personnel records as appropriately redacted;
(q) all real property owned, operated, leased, subleased or licensed by, or for which a right to use or occupy has been granted to, any Seller Party, other than the RFG Leased Facilities and the RFG Facility;
(r) all rights or any of its Affiliates from any employee of any Seller Party relating to prepaid expenses, credits, advance payments, claims, security, refunds, rights or any of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees, its Affiliates (other than the Deposits;
(s) all rights to causes Ordinary Course of action, rights of recovery, rights of set-off of any kind, lawsuits, claims, bankruptcy claims or proofs of claims Business employee advances and demands of any nature other than as set forth in Section 2.1(gloans or notes from any Transferred Employees);
(tf) all attorney work product any (1) confidential personnel and privileged communications;
medical Records pertaining to any Current Employees or Former Employees to the extent the disclosure of such information is prohibited by applicable Law, (u2) except as otherwise expressly provided in this Agreement, all of other Records that Sellers are required by Law to retain and (3) any Records or other documents relating to the assets, properties and rights of every kind, nature, character and description (accrued, contingent or otherwise), tangible and intangible, real, personal or mixed, which are owned, used or held for use by a Seller Party Chapter 11 Cases that are not Related protected by the attorney-client privilege; provided that Buyer shall have the right to make copies of any portions of such retained Records referenced in subsection (2) to the RFG extent that such portions relate to the Business (including the avocado or other guacamole derivative product business)any Purchased Asset;
(vg) all Permits other than the Georgia Tax CreditsAssumed Permits;
(h) all assets maintained or held (including all deposits) pursuant to or in connection with the Health Plans or the 401(k) Plan; and
(wi) the assets, properties rights of Sellers under this Agreement and rights specifically set forth on Schedule 2.2(w) (the “Specifically Excluded Assets”). All of the foregoing assets, properties Related Agreements and contractual rights are hereinafter sometimes collectively referred all cash and non-cash consideration payable or deliverable to as the “Excluded Assets,” and such Excluded Assets are not being sold to Buyer pursuant to Sellers under this Agreement.
Appears in 1 contract
2Excluded Assets. Notwithstanding anything herein to Other than the contraryPurchased Assets described in Section 2.1, no Seller Party shall sell, transfer, convey, assign Buyer expressly understands and agrees that it is not purchasing or deliver to Buyeracquiring, and Buyer shall Sellers are not acquire selling or have any rights to acquireassigning, any Seller Party’s right, title and interest in and to any other assets or properties of the following:
(a) any cash on hand or cash equivalents, bank accounts, bank deposits, investment accounts, lockboxes, certificates of deposit, benefits of credits, marketable securities or investments in other Persons, certificates of deposit or treasury bills, and other similar items of any Seller Party, whether or not attributable to the RFG Business;
(b) any Seller Party’s rights to claim refunds and causes of action not Related to the RFG Business;
(c) all rights ofSellers, and all consideration received by, the Seller Parties or their Affiliates under this Agreement or any Transaction Document;
(d) all Proprietary Rights of the Seller Parties not Related to the RFG Business, including, for the avoidance of doubt, the Calavo trademark or any derivative thereof such other assets and any Proprietary Right listed on Schedule 2.2(d);
(e) any Permits other than the Assigned Permits;
(f) all Tax Returns of the Seller Parties;
(g) any Tax refunds, including all net operating losses, Relating to the RFG Business or properties shall be excluded from the Purchased Assets for Pre-Closing Tax Periods;
(h) any Contract other than the Assigned Contracts;“Excluded Assets”). Excluded Assets include the following assets and properties of Sellers:
(i) all equity cash and cash equivalents, bank accounts and securities of Sellers;
(ii) any accounts receivable and accounts payable associated with the operation of the Facility prior to Closing;
(iii) all work-in-progress and finished Product inventory, whether or not located at the Facility as of the Closing Date;
(iv) all Contracts that are not Assumed Contracts;
(v) the corporate seals, organizational documents, minute books, stock books, Tax Returns, books of account or other interests records having to do with the corporate organization of Sellers, all employee-related or employee benefit- 131622973.6 related files or records, other than personnel files of Transferred Employees, and any other books and records which Sellers are prohibited from disclosing or transferring to Buyer under applicable Law and is required by applicable Law to retain;
(vi) any personal property at the Facility owned by Employees and not by Sellers;
(vii) any personal property owned by third-party vendors and leased to Sellers for use in connection with the Seller Parties or any operations of Seller Party’s Subsidiaries, Affiliates, joint ventures or partnershipsthe Facility;
(j) the Personal Property other than the Transferred Personal Property;
(k) all assets used in connection with any Seller Party’s corporate functions (including, but not limited to, the Seller Parties’ Organizational Documents), tax records, taxpayer and other identification numbers, seals, minute books and stock transfer books and other corporate records;
(l) all of the assets owned and used by any Seller to perform legal, finance, accounting, information technology, human resources or other administrative services or corporate functions, wherever located, and by whomever possessed;
(mviii) all insurance policies and binders maintained by any Seller Party or its Affiliates, of Sellers and all rights of action, lawsuits, benefits, claims, demands, rights of recovery to applicable claims and set-off, and proceeds, under or with respect to such insurance policiesproceeds thereunder;
(nix) any RFG Employee Plan, all Benefit Plans and the trusts or other assets related attributable thereto;
(ox) all Books Tax assets (including duty and Records other than the Transferred Books Tax refunds and Recordsprepayments);
(p) all personnel records as required by California Law; provided that the Parties acknowledge and agree that the Seller Parties have provided to Buyer copies of such personnel records as appropriately redacted;
(q) all real property owned, operated, leased, subleased or licensed by, or for which a right to use or occupy has been granted to, any Seller Party, other than the RFG Leased Facilities and the RFG Facility;
(r) all rights of any Seller Party relating to prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees, other than the Deposits;
(sxi) all rights to causes of any action, rights of recovery, rights of set-off of any kind, lawsuits, claims, bankruptcy claims suit or proofs of claims and demands claim of any nature other than as set forth in Section 2.1(g)available to or being pursued by Sellers, whether arising by way of counterclaim or otherwise;
(txii) all attorney work product and privileged communications;
(u) except as otherwise expressly provided in this Agreement, all of the assets, properties and rights of every kind, nature, character and description (accrued, contingent or otherwise), tangible and intangible, real, personal or mixed, which are owned, used or held for use by a Seller Party that are not Related to Sellers in their businesses other than the RFG Business (including the avocado or other guacamole derivative product business);Business;
(vxiii) the Georgia Tax Creditsrights which accrue or will accrue to Sellers under the Transaction Documents; and
(wxiv) all Materials and other tangible personal property listed on Schedule 2.1(ii); and
(xv) the assetsname “Silarx Pharmaceuticals, properties and rights specifically set forth on Schedule 2.2(w) (the “Specifically Excluded Assets”). All of the foregoing assets, properties and contractual rights are hereinafter sometimes collectively referred to as the “Excluded Assets,Inc.” and such Excluded Assets are not being sold to Buyer pursuant to this Agreement.
Appears in 1 contract
2Excluded Assets. Notwithstanding anything herein to The transactions covered by this Agreement consist only of the contrary, no Seller Party shall sell, transfer, convey, assign or deliver to Buyersale of assets, and Buyer shall not acquire the sale of a business. The Property does not include the personal property, assets, liabilities and other items listed or have any rights to acquire, any Seller Party’s right, title and interest in and to any of described below (the following:“Excluded Assets”):
(a) any cash on hand Intercompany accounts and contracts of Seller or cash equivalents, bank accounts, bank deposits, investment accounts, lockboxes, certificates of deposit, benefits of credits, marketable securities or investments in other Persons, certificates of deposit or treasury bills, and other similar items of any Seller Party, whether or not attributable to the RFG Businessits Affiliates;
(b) any Cash or bank accounts of Seller Party’s rights to claim refunds and causes of action not Related to the RFG Business;or its Affiliates; ME1 37645578v.2
(c) all rights of, Defenses and all consideration received by, claims that Seller or its Affiliates could assert against Third Parties (except to the Seller Parties or their Affiliates extent that such defenses and claims relate to liabilities that Buyer is assuming under this Agreement or any Transaction Documentrelating to the Property);
(d) all Proprietary Rights of the Seller Parties not Related to the RFG Business, including, for the avoidance of doubt, the Calavo trademark or any derivative thereof Accounts and any Proprietary Right listed on Schedule 2.2(d); notes receivable;
(e) any Permits other than the Assigned PermitsAccounts payable;
(f) Any license or authorization to use or display trademarks, service marks, logos, insignia, imprints, brand identifications, advertising and trade names of Seller or its Affiliates (or marks otherwise proprietary to Seller or any of its Affiliates), including, without limitation, “Global.” Buyer shall, at its expense, remove or cover all Tax Returns signs and markings at or on the Property that indicate that they were ever owned or operated by Seller or any of its Affiliates and return such signs and markings to Seller. Buyer further shall remove all signs and markings proprietary to Seller located at or on the Seller PartiesProperty. The foregoing requirements shall not apply to those signs and markings related to Seller’s operations under the Leaseback Agreement, which shall remain on the Property during the term of thereof;
(g) Any permits, licenses, registrations, certificates, approvals or similar rights from any Tax refunds, including all net operating losses, Relating Governmental Authority related to the RFG Business ownership or use of the Purchased Assets for Pre-Closing Tax PeriodsProperty other than the Licenses;
(h) any Contract other than The items listed on Exhibit B (the Assigned Contracts“Excluded Personal Property”);
(i) all equity and other interests in Any insurance coverage under any insurance policies that relate to the Seller Parties Property, or any part of Seller Party’s Subsidiariesthe Property, Affiliatesand any rights under such insurance policies, joint ventures whether such policies benefit Seller, or partnershipsany Affiliate of Seller, or any other person or entity;
(j) the Personal Property other than the Transferred Personal PropertyAny labor, employment, or collective bargaining agreements between Seller and its employees or between an Affiliate of Seller and such Affiliate’s employees, or any employee benefit plans of Seller or its Affiliates;
(k) all assets used Anything else that is stated in connection with this Agreement as remaining the property or responsibility of Seller, its Affiliates or any Seller Third Party’s corporate functions (including, but not limited to, the Seller Parties’ Organizational Documents), tax records, taxpayer and other identification numbers, seals, minute books and stock transfer books and other corporate records;; and
(l) all of the assets Any other property that is owned and used by any Seller to perform legal, finance, accounting, information technology, human resources or other administrative services or corporate functions, wherever located, and by whomever possessed;
(m) all insurance policies and binders maintained by any Seller Party or its Affiliates, Affiliates and all rights of action, lawsuits, benefits, claims, demands, rights of recovery and set-off, and proceeds, under or with respect to such insurance policies;
(n) any RFG Employee Plan, and the assets related thereto;
(o) all Books and Records other than the Transferred Books and Records;
(p) all personnel records as required by California Law; provided that the Parties acknowledge and agree that the Seller Parties have provided to Buyer copies of such personnel records as appropriately redacted;
(q) all real property owned, operated, leased, subleased or licensed by, or for which a right to use or occupy has been granted to, any Seller Party, other than the RFG Leased Facilities and the RFG Facility;
(r) all rights of any Seller Party relating to prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees, other than the Deposits;
(s) all rights to causes of action, rights of recovery, rights of set-off of any kind, lawsuits, claims, bankruptcy claims or proofs of claims and demands of any nature other than as set forth not otherwise specified in Section 2.1(g);
(t) all attorney work product and privileged communications; 2.1.
(u) except as otherwise expressly provided in this Agreement, all of the assets, properties and rights of every kind, nature, character and description (accrued, contingent or otherwise), tangible and intangible, real, personal or mixed, which are owned, used or held for use by a Seller Party that are not Related to the RFG Business (including the avocado or other guacamole derivative product business);
(v) the Georgia Tax Credits; and
(w) the assets, properties and rights specifically set forth on Schedule 2.2(w) (the “Specifically Excluded Assets”). All of the foregoing assets, properties and contractual rights are hereinafter sometimes collectively referred to as the “Excluded Assets,” and such Excluded Assets are not being sold to Buyer pursuant to this Agreement.
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2Excluded Assets. Notwithstanding anything herein to the contraryprovisions of Section 2.2.1, no Seller Party shall sell, transfer, convey, assign or deliver to Buyer, and Buyer shall not acquire or have any rights to acquire, any Seller Party’s no right, title and or interest in any Excluded Asset under or pursuant to this Agreement or as a result of the transactions contemplated hereby. The “Excluded Assets” consist of all assets, properties and to any rights of Seller and its respective Affiliates other than the Purchased Assets, including the following:
(a) any all cash on hand or and cash equivalents, bank accounts, bank deposits, investment accounts, lockboxes, certificates of deposit, benefits of credits, marketable securities or investments and prepaid items other than prepaid items and deposits of the Business included in other Persons, certificates the calculation of deposit or treasury bills, and other similar items of any Seller Party, whether or not attributable to the RFG BusinessClosing Date Working Capital Amount;
(b) any Seller Party’s all claims and rights to claim refunds and causes of action not Related of any nature whatsoever either (i) to the RFG Businessextent necessary or useful in defending any claim that may be asserted against Seller or for which indemnification has been sought by a Buyer Indemnified Party pursuant to ARTICLE 7 or (ii) against any Person relating to any of the Excluded Assets or Excluded Liabilities;
(c) all rights ofEmployee Benefit Plans, and all consideration received rights under, and assets held by, the Seller Parties Employee Benefit Plans and other employee benefit plans, programs, arrangements and agreements, including any retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements, but not including any agreements set forth in Section 2.2.1(c) or their Affiliates under this Agreement or any Transaction DocumentSection 2.2.1(f) of the Disclosure Schedules;
(d) all Proprietary Rights Intellectual Property of Seller or its Affiliates other than the Seller Parties not Related to the RFG Business, including, for the avoidance of doubt, the Calavo trademark or any derivative thereof and any Proprietary Right listed on Schedule 2.2(d); Purchased IP Rights;
(e) Seller’s and its Affiliates’ (i) minute books, Governing Documents, share records and Tax Returns, (ii) books and records that Seller or any Permits of its Affiliates is required by Law to retain; provided, however, that copies of such books and records are, to the extent permitted by Law, included in the Purchased Assets to the extent primarily related to the Business; (iii) all records, reports, correspondence and memoranda prepared or received by Seller or any of its Affiliates (including all analyses relating to the Business or Buyer so prepared or received), and all valuations, expressions of interest and bids received from all Persons, in each case, in connection with the sale of the Business or the transactions contemplated hereby; (iv) all financial statements of Seller or its Affiliates (other than those that relate primarily to the Assigned PermitsBusiness) and all records (including working papers) related thereto; (v) a copy of all consolidating and consolidated financial information and all other accounting records prepared or used in connection with the preparation of the Financial Statements (including working papers); and (vi) any document or other item subject to attorney-client privilege;
(f) all Tax Returns insurance policies, including insurance policies in respect of directors and officers, and all claims against insurance carriers thereunder to the extent related to any claim for which indemnification is owed by Seller Partiespursuant to ARTICLE 7;
(g) any Tax refundsclaims, including all net operating lossesrights and interest in and to any refunds of income Taxes of Seller, Relating and its Affiliates with respect to the RFG operation of the Business or the Purchased Assets for Pre-any taxable years or periods ending on or prior to the Closing Tax PeriodsDate, and all beneficial interests in any portion of such a refund with respect to the operation of the Business or the Purchased Assets for any taxable year or period beginning before and ending after the Closing Date, for the portion of such taxable year or period ending on or prior to the Closing Date;
(h) the portion of any Contract Shared Contracts which relate to a business other than the Assigned ContractsBusiness;
(i) all equity rights which accrue or will accrue to Seller under this Agreement and other interests in the Seller Parties or any of Seller Party’s Subsidiaries, Affiliates, joint ventures or partnerships;Delivered Documents; and
(j) the Personal Property other than the Transferred Personal Property;
(kassets listed on Section 2.2.2(j) all assets used in connection with any Seller Party’s corporate functions (including, but not limited to, the Seller Parties’ Organizational Documents), tax records, taxpayer and other identification numbers, seals, minute books and stock transfer books and other corporate records;
(l) all of the assets owned and used by any Seller to perform legal, finance, accounting, information technology, human resources or other administrative services or corporate functions, wherever located, and by whomever possessed;
(m) all insurance policies and binders maintained by any Seller Party or its Affiliates, and all rights of action, lawsuits, benefits, claims, demands, rights of recovery and set-off, and proceeds, under or with respect to such insurance policies;
(n) any RFG Employee Plan, and the assets related thereto;
(o) all Books and Records other than the Transferred Books and Records;
(p) all personnel records as required by California Law; provided that the Parties acknowledge and agree that the Seller Parties have provided to Buyer copies of such personnel records as appropriately redacted;
(q) all real property owned, operated, leased, subleased or licensed by, or for which a right to use or occupy has been granted to, any Seller Party, other than the RFG Leased Facilities and the RFG Facility;
(r) all rights of any Seller Party relating to prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees, other than the Deposits;
(s) all rights to causes of action, rights of recovery, rights of set-off of any kind, lawsuits, claims, bankruptcy claims or proofs of claims and demands of any nature other than as set forth in Section 2.1(g);
(t) all attorney work product and privileged communications;
(u) except as otherwise expressly provided in this Agreement, all of the assets, properties and rights of every kind, nature, character and description (accrued, contingent or otherwise), tangible and intangible, real, personal or mixed, which are owned, used or held for use by a Seller Party that are not Related to the RFG Business (including the avocado or other guacamole derivative product business);
(v) the Georgia Tax Credits; and
(w) the assets, properties and rights specifically set forth on Schedule 2.2(w) (the “Specifically Excluded Assets”). All of the foregoing assets, properties and contractual rights are hereinafter sometimes collectively referred to as the “Excluded Assets,” and such Excluded Assets are not being sold to Buyer pursuant to this AgreementDisclosure Schedule.
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Samples: Asset Purchase Agreement (Tabula Rasa HealthCare, Inc.)
2Excluded Assets. Notwithstanding anything herein to the contrary, no Seller Party shall sell, transfer, convey, assign or deliver to Buyer, and Buyer shall not acquire or have any rights to acquire, any Seller Party’s right, title and interest in and to any of the following:
(a) any cash on hand or cash equivalents, bank accounts, bank deposits, investment accounts, lockboxes, certificates of deposit, benefits of credits, marketable securities or investments in other Persons, certificates of deposit or treasury bills, and other similar items of any Seller Party, whether or not attributable to the RFG Business;
(b) any Seller Party’s rights to claim refunds and causes of action not Related to the RFG Business;
(c) all rights of, and all consideration received by, the Seller Parties or their Affiliates under this Agreement or any Transaction Document;
(d) all Proprietary Rights of the Seller Parties not Related to the RFG Business, including, for the avoidance of doubt, the Calavo trademark or any derivative thereof and any Proprietary Right listed on Schedule 2.2(d); ;
(e) any Permits other than the Assigned Permits;
(f) all Tax Returns of the Seller Parties;
(g) any Tax refunds, including all net operating losses, Relating to the RFG Business or the Purchased Assets for Pre-Closing Tax Periods;
(h) any Contract other than the Assigned Contracts;
(i) all equity and other interests in the Seller Parties or any of Seller Party’s Subsidiaries, Affiliates, joint ventures or partnerships;
(j) the Personal Property other than the Transferred Personal Property;
(k) all assets used in connection with any Seller Party’s corporate functions (including, but not limited to, the Seller Parties’ Organizational Documents), tax records, taxpayer and other identification numbers, seals, minute books and stock transfer books and other corporate records;
(l) all of the assets owned and used by any Seller to perform legal, finance, accounting, information technology, human resources or other administrative services or corporate functions, wherever located, and by whomever possessed;
(m) all insurance policies and binders maintained by any Seller Party or its Affiliates, and all rights of action, lawsuits, benefits, claims, demands, rights of recovery and set-off, and proceeds, under or with respect to such insurance policies;
(n) any RFG Employee Plan, and the assets related thereto;
(o) all Books and Records other than the Transferred Books and Records;
(p) all personnel records as required by California Law; provided that the Parties acknowledge and agree that the Seller Parties have provided to Buyer copies of such personnel records as appropriately redacted;
(q) all real property owned, operated, leased, subleased or licensed by, or for which a right to use or occupy has been granted to, any Seller Party, other than the RFG Leased Facilities and the RFG Facility;
(r) all rights of any Seller Party relating to prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees, other than the Deposits;
(s) all rights to causes of action, rights of recovery, rights of set-off of any kind, lawsuits, claims, bankruptcy claims or proofs of claims and demands of any nature other than as set forth in Section 2.1(g);
(t) all attorney work product and privileged communications; ;
(u) except as otherwise expressly provided in this Agreement, all of the assets, properties and rights of every kind, nature, character and description (accrued, contingent or otherwise), tangible and intangible, real, personal or mixed, which are owned, used or held for use by a Seller Party that are not Related to the RFG Business (including the avocado or other guacamole derivative product business);
(v) the Georgia Tax Credits; and
(w) the assets, properties and rights specifically set forth on Schedule 2.2(w) (the “Specifically Excluded Assets”). All of the foregoing assets, properties and contractual rights are hereinafter sometimes collectively referred to as the “Excluded Assets,” and such Excluded Assets are not being sold to Buyer pursuant to this Agreement.
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