Assets to be Transferred. Subject to the terms and conditions of this Agreement, on the Closing Date (as hereinafter defined) ConnectInc shall, immediately upon receipt of the stock certificate for the Closing Shares, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) sell, transfer, convey, assign and deliver to Buyer, in electronic form wherever possible, and Buyer shall purchase and accept all of the right, title and interest of ConnectInc in and to the following (collectively referred to herein as the "Market Maker Assets"): (a) the assets listed on Part 1.1(a) of the Disclosure Schedule, including the computer software source code of ConnectInc's Market Maker product; (b) all contracts, contractual rights, purchase orders and sales orders of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as described in paragraph (h) below shall be deemed to be Market Maker Assets), which list shall specifically identify any maintenance agreements, subject to the Assumed Liabilities (as defined in Section 1.3), including, without limitation, those Contracts listed on Part 1.1(b) of the Disclosure Schedule, but excepting those contracts, contractual rights, 1. purchase orders and sales orders of ConnectInc directly relating to OEM sales of ConnectInc's Market Maker products as part of a suite of products; (c) all contracts, contractual rights, purchase orders and sales orders and other agreements of ConnectInc directly relating only to ConnectInc's Market Maker Assets that are being negotiated as of the Closing Date (collectively, the "Prospective Contracts"), subject to the limitations set forth in Section 4.3, including, without limitation, those Prospective Contracts listed on Part 1.1(c) of the Disclosure Schedule; (d) the computers, office equipment and the software applications residing on the hardware used by those employees of Seller who become employees of Buyer pursuant to Section 4.2, as set forth on Part 1.1(d) of the Disclosure Schedule; (e) all hardware and software used in the testing of only the Market Maker product, as set forth on Part 1.1(e) of the Disclosure Schedule; and (f) the copyrights, trademarks and tradenames used in connection with ConnectInc's Market Maker product (but excluding trademarks and tradenames associated with ConnectInc's OEM sales of the Market Maker product as part of a suite of products) and any registrations with any governmental body relating thereto, including the trademarks listed on Part 1.1(f) of the Disclosure Schedule; (g) all records, files, invoices, customer lists, accounting records and business records relating only to ConnectInc's Market Maker product; provided that the items described in this paragraph (g) need not be physically delivered to Buyer until the 15th day after the Closing; and (h) ConnectInc's accounts receivable with respect to maintenance associated with its stand-alone Market Maker product, which Seller represents is $162,183 as of the Closing (and Seller agrees to forward any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each of the Market Maker Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares (as defined in Section 1.4), except as provided in subparagraphs (g) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer is provided herein is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without any requirement on the part of Seller or Buyer to pay any money pursuant to or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party to the assignment of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Material Seller Contact (or any right or benefit arising thereunder, including without limitation the enforcement for the
Appears in 1 contract
Assets to be Transferred. Subject to the terms and conditions of this AgreementExcept as hereinafter provided, on the ------------------------ Closing Date (as hereinafter defined) ConnectInc shall), immediately upon receipt of the stock certificate for the Closing Shares, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) Seller will sell, transfer, convey, assign transfer and deliver to Buyer, in electronic form wherever possiblePurchaser, and Buyer shall Purchaser will purchase and accept from Seller, all of the Seller's right, title and interest of ConnectInc in and to the following properties, assets and rights of every kind and description whatsoever, whether personal, tangible, intangible or mixed, whether accrued, contingent or otherwise useful for or otherwise used in connection with the Business (collectively referred to herein other than the Excluded Assets (as defined below)), including all assets and rights that may have been acquired by Seller for use in the Business between the date hereof and the Closing Date, and including those assets useful for or otherwise used by the Business that are owned or in the possession of some person other than Seller (collectively, the "Market Maker Purchased Assets"):). The Purchased Assets include, without limitation, all of ----------------- those items in the following categories useful in the Business, but shall not include the Excluded Assets:
(a) the assets listed on Part 1.1(a) all inventories, accounts and notes receivable, costs in excess of the Disclosure Schedulexxxxxxxx, including the computer software source code of ConnectInc's Market Maker productdeferred charges (excluding prepaid income taxes, if any), deposits, advance payments and prepaid items;
(b) all contractstangible property, contractual rightsreal and personal, purchase orders equipment and sales orders of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as described in paragraph (h) below shall be deemed to be Market Maker Assets)leasehold improvements owned or leased by Seller, which list shall specifically identify any maintenance agreementsare used or intended for use in connection with the Business, subject to the Assumed Liabilities (as defined in Section 1.3), including, without limitation, those Contracts including that listed on Part Exhibit 1.1(b) of the Disclosure Schedule, but excepting those contracts, contractual rights,
1. purchase orders and sales orders of ConnectInc directly relating to OEM sales of ConnectInc's Market Maker products as part of a suite of products-------------- attached hereto;
(c) all contracts, contractual rights, including purchase orders and sales orders contracts, and other agreements of ConnectInc directly relating only to ConnectInc's Market Maker Assets that are being negotiated as of the Closing Date (collectivelyall backlog and work in progress, the "Prospective Contracts"), subject to the limitations set forth in Section 4.3, including, without limitation, those Prospective Contracts listed on Part 1.1(c) of the Disclosure Schedule;
(d) the computers, office equipment and the software applications residing on the hardware used by those employees of Seller who become employees of Buyer pursuant to Section 4.2, as set forth on Part 1.1(d) of the Disclosure Schedule;
(e) all hardware and software used in the testing of only the Market Maker product, as set forth on Part 1.1(e) of the Disclosure Schedule; leases and
(f) the copyrights, trademarks and tradenames used in connection with ConnectInc's Market Maker product (but excluding trademarks and tradenames associated with ConnectInc's OEM sales of the Market Maker product as part of a suite of products) and any registrations with any governmental body relating thereto, including the trademarks listed on Part 1.1(f) of the Disclosure Schedule;
(g) all records, files, invoices, customer lists, accounting records and business records relating only to ConnectInc's Market Maker product; provided that the items described in this paragraph (g) need not be physically delivered to Buyer until the 15th day after the Closing; and
(h) ConnectInc's accounts receivable with respect to maintenance associated with its stand-alone Market Maker product, which Seller represents is $162,183 as of the Closing (and Seller agrees to forward any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each of the Market Maker Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares (as defined in Section 1.4), except as provided in subparagraphs (g) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer is provided herein is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without any requirement on the part of Seller or Buyer to pay any money pursuant to or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party to the assignment of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Material Seller Contact (or any right or benefit arising thereunder, including without limitation the enforcement for the
Appears in 1 contract
Assets to be Transferred. to Buyer at the Subsequent Closing. ----------------------------------------------------------- Subject to the terms and conditions of this Agreementand in reliance upon the representations and warranties contained herein, on upon the Closing Date (as hereinafter defined) ConnectInc shallSubsequent Closing, immediately upon receipt Buyer shall exercise the Option in part with respect to the acquisition of the stock certificate for the Closing SharesIn-Orbit Satellite Assets and, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) pursuant to such exercise, Seller shall sell, transferassign, convey, assign transfer and deliver to Buyer, in electronic form wherever possibleor, and Buyer shall purchase and accept at Buyer's option, Newco, all of the right, title and interest of ConnectInc Seller (and shall cause to be so transferred and delivered all of the right, title and interest, if any, of each of the Specified Seller Affiliates) in and to all assets, properties and rights (whether tangible or intangible, real, personal or mixed, fixed, contingent or otherwise and wherever located) related to, associated with, or used in connection with the following (collectively referred to herein as the "Market Maker Assets"):
(a) the assets listed on Part 1.1(a) of the Disclosure Schedule, including the computer software source code of ConnectInc's Market Maker product;
(b) all contracts, contractual rights, purchase orders and sales orders of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as described in paragraph (h) below shall be deemed to be Market Maker Assets), which list shall specifically identify any maintenance agreements, subject to the Assumed Liabilities (as defined in Section 1.3), including, without limitation, those Contracts listed on Part 1.1(b) of the Disclosure Schedule, but excepting those contracts, contractual rights,
1. purchase orders and sales orders of ConnectInc directly relating to OEM sales of ConnectInc's Market Maker products as part of a suite of products;
(c) all contracts, contractual rights, purchase orders and sales orders and other agreements of ConnectInc directly relating only to ConnectInc's Market Maker Assets that are being negotiated as of the Closing Date In-Orbit Satellite (collectively, the "Prospective ContractsIn-Orbit Satellite Assets," and, together with the Ground Satellite Assets and the Option, the "Transferred Assets"), subject free and clear of all Liens (other than Permitted Liens), which assets, properties and rights include the following:
(i) the In-Orbit Satellite or, if title to the limitations In-Orbit Satellite shall not have transferred to Seller under the Loral Contract, all right, title and interest of Seller in and to the In-Orbit Satellite thereunder;
(ii) all of the right, title and interest of Seller in and to (x) all Licenses granted to Seller by the FCC with respect to the Transferred Assets, including the FCC License, and (y) any application for modification of the FCC License that was filed prior to the date hereof or that may be filed hereafter until the Subsequent Closing;
(iii) all of the right, title and interest of Seller in and to the In- Orbit Satellite Contracts, including all rights under the Loral Contract for Damages or insurance proceeds relating to claims made by Seller prior to the date hereof, a summary of which is set forth in Section 4.3Schedule 2.2(b)(iii) and any -------------------- 15 claims made by Buyer after the Subsequent Closing Date, including, without limitation, those Prospective Contracts listed on Part 1.1(c) of in connection with the Disclosure Schedule;
(d) the computers, office equipment and the software applications residing on the hardware used by those employees of Seller who become employees of Buyer pursuant to Section 4.2, as set forth on Part 1.1(d) of the Disclosure Schedule;
(e) all hardware and software used in the testing of only the Market Maker product, as set forth on Part 1.1(e) of the Disclosure ScheduleIn-Orbit Satellite; and
(fiv) the copyrights, trademarks and tradenames used in connection with ConnectInc's Market Maker product (but excluding trademarks and tradenames associated with ConnectInc's OEM sales all of the Market Maker product as part right, title and interest of a suite of products) Seller in and to any registrations with any governmental body relating theretoIntellectual Property to the extent such Intellectual Property relates to the construction, including the trademarks listed on Part 1.1(f) launch, ownership or operation of the Disclosure Schedule;
(g) all records, files, invoices, customer lists, accounting records In-Orbit Satellite. It is specifically acknowledged and business records relating only to ConnectInc's Market Maker product; provided agreed by Buyer that the items described in this paragraph (g) need not be physically delivered to Buyer until the 15th day after the Closing; and
(h) ConnectInc's accounts receivable with respect to maintenance associated with its stand-alone Market Maker product, which Seller represents is $162,183 as of the Closing (and Seller agrees to forward any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each of the Market Maker Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares (as defined in Section 1.4), except as provided in subparagraphs (g) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer is provided herein is not assignable without the consent of another partyassigning, this Agreement shall not constitute an assignment transferring or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without any requirement on the part of Seller or Buyer to pay any money pursuant to or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party to the assignment of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide conveying to Buyer the benefits of use of such Material Seller Contact (or right to acquire any right or benefit arising thereunder, including without limitation assets pursuant to this Agreement other than the enforcement for theTransferred Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Tci Satellite Entertainment Inc)
Assets to be Transferred. Subject Seller shall sell, convey, transfer and assign to Buyer and, subject to the terms and conditions of this AgreementAgreement and in reliance upon the covenants, on the Closing Date (as hereinafter defined) ConnectInc shallrepresentations and warranties of Seller and Stockholder contained herein, immediately upon receipt of the stock certificate for the Closing Shares, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) sell, transfer, convey, assign and deliver to Buyer, in electronic form wherever possible, and Buyer shall purchase and accept all of acquire from Seller, at the rightClosing described in Section 1.4, title and interest of ConnectInc in and to the following (collectively referred to herein assets of Seller, as they shall exist on the "Market Maker Assets"):Closing Date:
(a) the assets listed on Part 1.1(a) All of the Disclosure ScheduleSeller's interest in and to its business goodwill and other intangible assets of every kind and description, to the extent assignable, including Seller's license and the computer software source code of ConnectInc's Market Maker productexclusive right to the name "South Shore Pumping Corp." ("Intangibles");
(b) all contractsSeller's furniture, contractual rightsfixtures and equipment set forth on SCHEDULE 1.1 attached hereto ("Furniture, purchase orders Fixtures and sales orders of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as described in paragraph (hEquipment") below shall be deemed to be Market Maker Assets), which list shall specifically identify and any maintenance agreements, subject to the Assumed Liabilities (as defined in Section 1.3), including, without limitation, those Contracts listed on Part 1.1(b) of the Disclosure Schedule, but excepting those contracts, contractual rights,
1. purchase orders applicable rights under warranties and sales orders of ConnectInc directly relating to OEM sales of ConnectInc's Market Maker products as part of a suite of productsguaranties related thereto;
(c) all All of Seller's rights or interests under the contracts, contractual rightsagreements, leases, dumping plants, licenses for waste water disposal and transportation, set forth on Schedule 1.2 and purchase orders and sales orders and other agreements of ConnectInc directly relating only to ConnectIncSeller's Market Maker Assets that are being negotiated as of the Closing Date business (collectively, the "Prospective ContractsContract Rights"), subject to the limitations ) set forth in Section 4.3, including, without limitation, those Prospective Contracts listed on Part 1.1(c) of the Disclosure ScheduleSchedule 1.3;
(d) All of Seller's prepaid expenses, advances and deferred charges, relating exclusively to its business, to the computersextent assignable, office equipment and the software applications residing on the hardware used by those employees any deposits of Seller who become employees of Buyer pursuant Seller, including without limitation any deposits relating to Section 4.2, as Contract Rights set forth on Part 1.1(d) of the Disclosure Schedule;Schedule 1.4; and
(e) all hardware Telephone numbers, Yellow Pages advertising, overflow tanks, route lists, and software used in the testing of only the Market Maker product, as customer lists set forth on Part 1.1(eSchedule 1.5.
(ii) Buyer is assuming no liabilities of the Disclosure Schedule; and
(f) Seller whatsoever, excepting only the copyrightsliabilities specifically referred to in Section 1.3 hereto, trademarks and tradenames used in connection with ConnectInc's Market Maker product (but excluding trademarks and tradenames associated with ConnectInc's OEM sales of the Market Maker product as part of a suite of products) and any registrations with any governmental body relating thereto, including the trademarks listed on Part 1.1(f) of the Disclosure Schedule;
(g) all records, files, invoices, customer lists, accounting records and business records relating only to ConnectInc's Market Maker product; provided that the items described in this paragraph (g) need not be physically delivered to Buyer until the 15th day after the Closing; and
(h) ConnectInc's accounts receivable with respect to maintenance associated with its stand-alone Market Maker product, which Seller represents is $162,183 as of the Closing (and Seller agrees to forward any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each of the Market Maker Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares (as defined in Section 1.4), except as provided in subparagraphs (g) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer is provided herein is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without any requirement on the part of Seller or Buyer to pay any money pursuant to or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party to the assignment of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Material Seller Contact (or any right or benefit arising thereunder, including without limitation the enforcement for theremain solely liable therefor.
Appears in 1 contract
Assets to be Transferred. Subject to the terms and conditions of this AgreementExcept as hereinafter provided, on the ------------------------ Closing Date (as hereinafter defined) ConnectInc shall), immediately upon receipt of the stock certificate for the Closing Shares, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) Seller will sell, transfer, convey, assign transfer and deliver to Buyer, in electronic form wherever possiblePurchaser, and Buyer shall Purchaser will purchase and accept from Seller, all of the Seller's right, title and interest of ConnectInc in and to the following properties, assets and rights of every kind and description whatsoever, whether personal, tangible, intangible or mixed, whether accrued, contingent or otherwise useful for or otherwise used in connection with the Business (collectively referred to herein other than the Excluded Assets (as defined below)), including all assets and rights that may have been acquired by Seller for use in the Business between the date hereof and the Closing Date, and including those assets useful for or otherwise used by the Business that are owned or in the possession of some person other than Seller (collectively, the "Market Maker Purchased Assets"):). The Purchased Assets include, without limitation, all of ---------------- those items in the following categories useful in the Business, but shall not include the Excluded Assets:
(a) the assets all equity interests and investments relating solely to those in subsidiary companies, inventories, accounts and notes receivable, costs in excess of xxxxxxxx, deferred charges (excluding prepaid income taxes, if any), deposits, advance payments and prepaid items, including without limitation, those listed on Part Exhibit 1.1(a) of the Disclosure Schedule, including the computer software source code of ConnectInc's Market Maker product-------------- attached hereto;
(b) all contractstangible property, contractual rightsreal and personal, purchase orders equipment and sales orders of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as described in paragraph (h) below shall be deemed to be Market Maker Assets)leasehold improvements owned or leased by Seller, which list shall specifically identify any maintenance agreementsare used or intended for use in connection with the Business, subject to the Assumed Liabilities (as defined in Section 1.3), including, without limitation, those Contracts including that listed on Part Exhibit 1.1(b) of the Disclosure Schedule, but excepting those contracts, contractual rights,
1. purchase orders and sales orders of ConnectInc directly relating to OEM sales of ConnectInc's Market Maker products as part of a suite of products;attached hereto; --------------
(c) all contracts, contractual rights, including purchase orders and sales orders contracts, and other all backlog and work in progress, leases and agreements of ConnectInc directly relating only to ConnectInc's Market Maker Assets that are being negotiated as of the Closing Date (collectively, the "Prospective Contracts"), subject to the limitations set forth in Section 4.3, including, without limitation, those Prospective Contracts listed on Part 1.1(c) of the Disclosure Schedule;
(d) the computers, office equipment and the software applications residing on the hardware used by those employees of Seller who become employees of Buyer pursuant to Section 4.2, as set forth on Part 1.1(d) of the Disclosure Schedule;
(e) all hardware and software used in the testing of only the Market Maker product, as set forth on Part 1.1(e) of the Disclosure Schedule; and
(f) the copyrights, trademarks and tradenames used in connection with ConnectInc's Market Maker product (but excluding trademarks and tradenames associated with ConnectInc's OEM sales of the Market Maker product as part of a suite of products) and any registrations with any governmental body relating thereto, including the trademarks listed on Part 1.1(f) of the Disclosure Schedule;
(g) all records, files, invoices, customer lists, accounting records and business records relating only to ConnectInc's Market Maker product; provided that the items described in this paragraph (g) need not be physically delivered to Buyer until the 15th day after the Closing; and
(h) ConnectInc's accounts receivable with respect to maintenance associated with its stand-alone Market Maker product, which Seller represents is $162,183 as of the Closing (and Seller agrees to forward any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each of the Market Maker Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares (as defined in Section 1.4), except as provided in subparagraphs (g) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer is provided herein is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without any requirement on the part of Seller or Buyer to pay any money pursuant to or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party to the assignment of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Material Seller Contact (or any right or benefit arising thereunder, including without limitation the enforcement for theExhibit 1.1
Appears in 1 contract
Assets to be Transferred. Subject to the terms and conditions of this AgreementAgreement and for the consideration herein stated, on the Closing Date (as hereinafter defined) ConnectInc shallDate, immediately upon receipt of the stock certificate for the Closing Shares, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) Sellers shall sell, transfer, convey, assign assign, and deliver to Buyer, in electronic form wherever possible, and Buyer shall purchase and accept accept, all of the Sellers’ right, title and interest of ConnectInc in and the following assets to the following extent that such assets exist as of the Closing Date and exclusively relate to the Business or the Railway, free and clear of all Liens, other than Permitted Liens and Permitted Encumbrances, (collectively referred to herein as collectively, the "Market Maker “Purchased Assets"”):
(a) the assets All accounts receivable not aged greater than sixty (60) days past invoice due date listed on Part 1.1(aSection 2.1(a) of the Disclosure Schedule, including Schedule (the computer software source code of ConnectInc's Market Maker product“Receivables”);
(b) All machinery, equipment, building improvements, fixtures, vehicles, furniture, tools, dies, patterns, parts and other personal property and fixed assets, including all contracts, contractual rights, purchase orders and sales orders of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as described in paragraph (h) below shall be deemed to be Market Maker Assets), which list shall specifically identify any maintenance agreements, subject to the Assumed Liabilities (as defined in Section 1.3), including, without limitation, those Contracts listed on Part 1.1(b) of the Disclosure Schedule, but excepting those contracts, contractual rights,
1. purchase orders and sales orders of ConnectInc directly relating to OEM sales of ConnectInc's Market Maker products as part of a suite of products;
(c) all contracts, contractual rights, purchase orders and sales orders and other agreements of ConnectInc directly relating only to ConnectInc's Market Maker Assets that are being negotiated as of the Closing Date (collectively, the "Prospective Contracts"), subject to the limitations set forth in Section 4.3, including, without limitation, those Prospective Contracts listed on Part 1.1(c2.1(b) of the Disclosure Schedule;
(c) All inventories, including all raw materials and work in process, held by Sellers for twelve (12) months or less, as determined on a first-in first-out basis, listed or otherwise described on Section 2.1(c) of the Disclosure Schedule (“Inventory”);
(d) All Owned Real Property;
(e) All Seller Leases;
(f) All Seller Software listed on Section 2.1(f) of the computersDisclosure Schedule, Seller Intellectual Property listed on Section 2.1(f) of the Disclosure Schedule and Sellers’ rights to use any Third Party IP licenses listed on Section 2.1(f) of the Disclosure Schedule (collectively, “Seller Intellectual Property Assets”);
(g) All packing and shipping materials and office equipment supplies, including invoices, brochures, catalogs, and pamphlets;
(h) All current lists of customers, customer files and rights under sales contracts and customer orders;
(i) All records, documents and books relating to the software applications residing Purchased Assets, excluding (i) all records and returns relating to Taxes, assessments and similar governmental levies concerning Sellers (other than personal property taxes, assessments and levies imposed on the hardware used by Purchased Assets); (ii) all corporate records of Sellers, such as corporate minute books and stock transfer records; and (iii) all records and documents relating to any of the Excluded Assets or Excluded Liabilities; provided, however, if any of the foregoing include books and records relating to any of the Purchased Assets, copies of all such books and records shall be provided to Buyer at Closing;
(j) All rights under, interests in and deposits under all supplier agreements and orders, purchase orders, rebate agreements, leases and all other agreements, contracts and commitments, including those employees contracts with an Affiliate of either Seller who become employees of Buyer pursuant to Section 4.2, as set forth on Part 1.1(dSection 2.1(j) of the Disclosure Schedule;
(ek) All contracts and covenants of Transferred Employees and consultants with respect to confidentiality, secrecy, non-solicitation, and/or proprietary information of a Seller, and all hardware and software used in the testing of only the Market Maker product, as set forth on Part 1.1(e) of the Disclosure Schedule; andapplicable rights thereunder;
(fl) the copyrightsAll computer equipment and systems, trademarks software, programs and tradenames used in connection with ConnectInc's Market Maker product data, telephone numbers and internet domain name registrations (but excluding trademarks and tradenames other than those which (i) include “FreightCar” or any derivation thereof or (ii) contain a symbol or logo associated with ConnectInc's OEM sales of the Market Maker product as part of a suite of productsSeller Parent) and any registrations with any governmental body relating thereto(or an Affiliate thereof)), including the trademarks listed identified on Part 1.1(fSection 2.1(l) of the Disclosure Schedule;
(gm) All rights under, interests in and deposits under all recordslicenses, filespermits, invoicesproduct registrations, customer listsfilings, accounting records authorizations, approvals and business records relating only indicia of authority issued by any governmental entity or agency (and pending applications for any thereof) to ConnectInc's Market Maker product; provided the extent transferable;
(n) All rights and claims against others to the extent that such rights and claims against others arise from or are in connection with the items described in this paragraph (g) need not be physically delivered to Buyer until the 15th day after the ClosingPurchased Assets or Assumed Liabilities; and
(ho) ConnectInc's accounts receivable All advances, prepaid expenses and deposits paid with respect to maintenance associated Purchased Assets, other than advances, prepaid expenses and deposits made by Sellers with its stand-alone Market Maker product, which Seller represents is $162,183 as of the Closing (and Seller agrees respect to forward any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each of the Market Maker Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares (as defined in Section 1.4), except as provided in subparagraphs (g) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer is provided herein is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without any requirement on the part of Seller or Buyer to pay any money pursuant to or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party to the assignment of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Material Seller Contact (or any right or benefit arising thereunder, including without limitation the enforcement for theinsurance.
Appears in 1 contract
Samples: Asset Purchase Agreement (FreightCar America, Inc.)
Assets to be Transferred. Subject to Except as otherwise provided in Section 2.03, on the terms and subject to the conditions of this Agreement, on at the Closing Date (and effective as hereinafter defined) ConnectInc shall, immediately upon receipt of the stock certificate for the Closing SharesEffective Time, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) Seller shall sell, transfer, convey, assign and deliver transfer to Buyer, in electronic form wherever possible, and Buyer shall purchase and accept Purchaser all of the Seller’s right, title and interest of ConnectInc in and to the following properties and assets that are used exclusively in connection with the Restaurants (collectively referred to herein as collectively, the "Market Maker “Assets"):”) free and clear of all Liens except for Permitted Liens:
(a) the assets listed on Part 1.1(a) all of the Disclosure Schedulefurniture, including trade fixtures and equipment that are owned by Seller and located at a Restaurant as of the computer software source code of ConnectInc's Market Maker productEffective Time (collectively, the “Equipment”);
(b) all contracts, contractual rights, purchase orders the Contracts to which Seller is a party that are in effect as of the Effective Time and sales orders of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as described in paragraph (h) below shall be deemed to be Market Maker Assets), which list shall specifically identify any maintenance agreements, subject relate exclusively to the Assumed Liabilities (as defined in Section 1.3), including, without limitation, those Contracts Business listed on Part 1.1(bSchedule 2.02(b) of (collectively, the Disclosure Schedule, but excepting those contracts, contractual rights,
1. purchase orders and sales orders of ConnectInc directly relating to OEM sales of ConnectInc's Market Maker products as part of a suite of products“Assigned Contracts”);
(c) all contracts, contractual rights, purchase orders and sales orders the cash bank for each Existing Restaurant and other agreements of ConnectInc directly relating only to ConnectInc's Market Maker Assets that are being negotiated as of the Closing Date prepaid and special items listed on Schedule 2.02(c) (collectively, the "Prospective Contracts"“Special Items”), subject to the limitations set forth in Section 4.3, including, without limitation, those Prospective Contracts listed on Part 1.1(c) of the Disclosure Schedule;
(d) the computersInventory and all other inventories, office equipment supplies and the software applications residing on the hardware used other tangible personal property that are owned by those employees of Seller who become employees of Buyer pursuant to Section 4.2, and located in a Restaurant as set forth on Part 1.1(d) of the Disclosure ScheduleEffective Time including counters, shelving, racks, slat walls, display cases, décor, tables, seating, signs, promotional items and materials, new and unused uniforms, smallwares and office supplies (collectively, the “Personal Property”);
(e) all hardware tools, equipment, and software used repair and maintenance supplies located in or on the testing of only Leased Vehicle (the Market Maker product, as set forth on Part 1.1(e) of the Disclosure Schedule; and“Repair and Maintenance Inventory”);
(f) to the copyrightsextent transferable under applicable law, trademarks and tradenames used in connection with ConnectInc's Market Maker product (but excluding trademarks and tradenames associated with ConnectInc's OEM sales the Permits necessary for the operation of the Market Maker product Business as part currently operated, and Seller will provide to Purchaser prior to the Closing a list of a suite of products) and any registrations all Permits held by Seller with any governmental body relating thereto, including respect to the trademarks listed on Part 1.1(f) of the Disclosure Schedule;Business; and
(g) all records, files, invoices, customer lists, accounting records and business records relating only to ConnectInc's Market Maker product; provided that the items described in this paragraph (g) need not be physically delivered to Buyer until the 15th day after the Closing; and
(h) ConnectInc's accounts receivable of Seller’s rights against its suppliers with respect to maintenance associated with its stand-alone Market Maker product, which express or implied warranties made in the sale to Seller represents is $162,183 as of the Closing Assets to the extent such rights (and Seller agrees i) automatically transfer to forward any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each Purchaser as the new owner of the Market Maker Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares Assets, (as defined in Section 1.4), except as provided in subparagraphs (gii) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer is provided herein is do not assignable without require the consent of another party, this Agreement shall any third parties and (iii) do not constitute an assignment impose any costs or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without any requirement expenses on the part of Seller or Buyer to pay any money pursuant to or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party to the assignment of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Material Seller Contact (or any right or benefit arising thereunder, including without limitation the enforcement for theits Affiliates.
Appears in 1 contract
Assets to be Transferred. Subject to At the terms Closing (as defined below) and conditions effective as of this Agreement, on the Closing Date (as hereinafter defined) ConnectInc shalldefined below), immediately upon receipt of the stock certificate for the Closing Shares, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) sell, transfer, convey, assign and deliver Seller will transfer to Buyer, in electronic form wherever possible, and Buyer shall purchase and accept all of the worldwide right, title and interest of ConnectInc Seller in and to the following assets of Seller, free and clear of all Liens other than Permitted Liens (collectively referred to herein the “Assets”):
1.1 all registered, unregistered and common law trademarks, service marks, logos and brand names owned by Seller including the “bebe” name and any derivations thereof as well as the "Market Maker Assets"):
(a) marks set forth on Schedule 1.1 attached hereto, and all registrations and applications therefor, together with the assets listed on Part 1.1(a) goodwill of the Disclosure ScheduleBusiness connected with the use of and symbolized by such marks, in any form including abbreviation, derivation, diffusion and/or otherwise, whether stylized or not stylized, for all commercial purposes for all goods, products and services, including for apparel and apparel accessories, including in all international trademark classes, including all worldwide rights, title and interest in such names, whether registered or not (collectively, the computer software source code of ConnectInc's Market Maker product“Trademarks”);
(b) all contracts1.2 the Contracts pursuant to which Seller has granted to a third party a royalty-bearing license to use one or more of the Trademarks, contractual rights, purchase orders and sales orders of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as described in paragraph (h) below shall be deemed to be Market Maker Assets), which list shall specifically identify any maintenance including license agreements, subject to the Assumed Liabilities (as defined in Section 1.3)distribution agreements and similar Contracts, including, without limitation, including those Contracts listed on Part 1.1(b) Schedule 1.2 attached hereto, as well as all Contract Rights thereunder (collectively, the “Licenses”), but, for clarity, excluding the Retained Distribution Agreements and any other agreements between Seller and its subcontractors such as agreements with its factories, designers, advertisers, printers, and similar subcontractors, that Seller utilizes in operating its Business, including for performing its obligations under the Contracts and/or exercising its rights under the License Agreement; provided, however, in the event that a Retained Distribution Agreement is bifurcated in accordance with Section 9.4 hereof, the New Buyer Agreement to which Buyer is a party shall be automatically deemed a “License” as of the Disclosure Scheduledate such New Buyer Agreement is fully executed;
1.3 the registered copyrights set forth on Schedule 1.3 attached hereto (collectively, but excepting those contractsthe “Copyrights”);
1.4 the domain names listed on Schedule 1.4 attached hereto as well as any other domain names (other than the Retained URLs) related to, contractual rightsor used in connection with, the Trademarks (collectively the “Domain Names,” and collectively with the Trademarks and the Copyrights, the “Transferred IP”); and
1. purchase orders 1.5 all claims, rights and sales orders causes of ConnectInc directly action of Seller for damages, profits or otherwise, including for declaratory relief, known or unknown, for infringement or any similar or related causes of action relating to OEM sales any of ConnectInc's Market Maker products as part of a suite of products;
(c) all contractsthe Transferred IP, contractual rights, purchase orders and sales orders and other agreements of ConnectInc directly relating only than with respect to ConnectInc's Market Maker Assets that are being negotiated as of any Proceedings commenced by Seller prior to the Closing Date (collectively, the "Prospective Contracts"), subject to the limitations set forth in Section 4.3, including, without limitation, those Prospective Contracts listed on Part 1.1(c) of the Disclosure Schedule;
(d) the computers, office equipment and the software applications residing on the hardware used by those employees of Seller who become employees of Buyer pursuant to Section 4.2, as which are set forth on Part 1.1(dSchedule 1.5). In the event that any of Seller’s employees or subsidiaries, owns (or is listed as the owner of record) or is in possession of any of the Disclosure Schedule;
(e) all hardware and software used in the testing of only the Market Maker productAssets, as set forth on Part 1.1(e) of the Disclosure Schedule; and
(f) the copyrights, trademarks and tradenames used in connection with ConnectInc's Market Maker product (but excluding trademarks and tradenames associated with ConnectInc's OEM sales of the Market Maker product as part of a suite of products) and any registrations with any governmental body relating thereto, including the trademarks listed on Part 1.1(f) of the Disclosure Schedule;
(g) all records, files, invoices, customer lists, accounting records and business records relating only Seller shall cause such employee or subsidiary to ConnectInc's Market Maker product; provided that the items described in this paragraph (g) need not be physically delivered convey such interest to Buyer until the 15th day after the Closing; and
(h) ConnectInc's accounts receivable with respect to maintenance associated with its stand-alone Market Maker product, which Seller represents is $162,183 as of at the Closing (and Seller agrees to forward any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each of the Market Maker Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares (as defined in Section 1.4), except as provided in subparagraphs (g) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer is provided herein is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without any requirement on the part of Seller or additional consideration paid by Buyer to pay any money pursuant to such employee or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party to the assignment of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Material Seller Contact (or any right or benefit arising thereunder, including without limitation the enforcement for theAffiliate.
Appears in 1 contract
Assets to be Transferred. Subject to the terms and conditions of this AgreementAgreement and for the consideration herein stated, on the Closing Date (as hereinafter defined) ConnectInc shalldefined herein), immediately upon receipt of the stock certificate for the Closing Shares, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) Sellers shall sell, transfer, convey, assign assign, and deliver to Buyer, in electronic form wherever possible, and Buyer shall purchase and accept accept, all of the Sellers’ right, title and interest of ConnectInc in and to the following assets, free and clear of all Liens (collectively referred to herein as collectively, the "Market Maker “Purchased Assets"”):
(a) All accounts, notes and other receivables relating to the assets Business or the Railway, including all those listed on Part 1.1(aSection 2.1(a) of the Disclosure Schedule (excluding those which have been paid in the Ordinary Course of Business prior to the Closing Date);
(b) All advances, prepaid expenses and deposits relating to the Business or the Railway, including those listed on Section 2.1(b) of the Disclosure Schedule, including the computer software source code of ConnectInc's Market Maker product;
(b) all contracts, contractual rights, purchase orders and sales orders of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as described in paragraph (h) below shall be deemed to be Market Maker Assets), which list shall specifically identify any maintenance agreements, subject to the Assumed Liabilities (as defined in Section 1.3), including, without limitation, those Contracts listed on Part 1.1(b) of the Disclosure Schedule, but excepting those contracts, contractual rights,
1. purchase orders and sales orders of ConnectInc directly relating to OEM sales of ConnectInc's Market Maker products as part of a suite of products;
(c) all contractsAll machinery, contractual rightsequipment, purchase orders and sales orders building improvements, fixtures, vehicles, furniture, tools, dies, patterns, parts and other agreements of ConnectInc directly personal property and fixed assets relating only to ConnectInc's Market Maker Assets that are being negotiated as of the Closing Date (collectively, the "Prospective Contracts"), subject to the limitations set forth in Section 4.3Business or the Railway, including, without limitation, including all those Prospective Contracts listed on Part 1.1(cSection 2.1(c) of the Disclosure Schedule;
(d) All inventories, including all raw materials;
(e) All Owned Real Property;
(f) All Leases with respect to the computersLeased Real Property;
(g) All Seller Intellectual Property (except Sellers’ trade names identified in Section 8.7 of this Agreement) and Sellers’ rights to use any Third Party IP;
(h) All packing and shipping materials and office supplies, office equipment including invoices, brochures, catalogs, and pamphlets;
(i) All lists of customers, customer files and rights under sales contracts and customer orders relating to the software applications residing Business;
(j) All records, documents and books relating to the Purchased Assets, the Business or the Railway, excluding (i) all records and returns relating to Taxes, assessments and similar governmental levies concerning Sellers (other than personal property taxes, assessments and levies imposed on the hardware used by Purchased Assets); (ii) all corporate records of Sellers, such as corporate minute books and stock transfer records; and (iii) all records and documents relating solely to any of the Excluded Assets or Excluded Liabilities;
(k) All rights under, interests in and deposits under all supplier agreements and orders, purchase orders, rebate agreements, leases and all other agreements, contracts and commitments, including those employees contracts with an Affiliate of either Seller who become employees of Buyer pursuant to Section 4.2, as set forth on Part 1.1(dSection 2.1(k) of the Disclosure Schedule;
(el) All contracts and covenants of employees and consultants with respect to confidentiality, secrecy, non-solicitation and/or proprietary information of a Seller relating to the Business or the Railway, and all hardware rights thereunder;
(m) All computer equipment and software systems, software, programs and data, telephone numbers and internet domain name registrations (other than those which (i) include “DTE” or any derivation thereof or (ii) contain a symbol or logo associated with DTE Energy), used in or relating to the testing of only Business or the Market Maker productRailway, as set forth other than those identified on Part 1.1(e) of the Disclosure Schedule; and
(f) the copyrights, trademarks and tradenames used in connection with ConnectInc's Market Maker product (but excluding trademarks and tradenames associated with ConnectInc's OEM sales of the Market Maker product as part of a suite of products) and any registrations with any governmental body relating thereto, including the trademarks listed on Part 1.1(fSection 2.1(m) of the Disclosure Schedule;
(gn) All rights under, interests in and deposits under all recordslicenses, filespermits, invoicesproduct registrations, customer listsfilings, accounting records authorizations, approvals and business records indicia of authority issued by any governmental entity or agency (and pending applications for any thereof) to the extent transferable relating only to ConnectInc's Market Maker product; provided that the items described in this paragraph Business or the Railway;
(go) need not be physically delivered All rights and claims against others relating to Buyer until the 15th day after Business or the ClosingRailway; and
(hp) ConnectInc's accounts receivable with respect All other assets, properties, rights and claims used in, relating to maintenance associated with its stand-alone Market Maker product, which Seller represents is $162,183 as or arising from the conduct of the Closing (and Seller agrees to forward Business or the Railway; provided, however, that the definition of Purchased Assets shall not include any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each of the Market Maker items defined as Excluded Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares (as defined in Section 1.4), except as provided in subparagraphs (g) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer is provided herein is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without any requirement on the part of Seller or Buyer to pay any money pursuant to or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party to the assignment of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Material Seller Contact (or any right or benefit arising thereunder, including without limitation the enforcement for the2.2 below.
Appears in 1 contract
Samples: Asset Purchase Agreement (FreightCar America, Inc.)
Assets to be Transferred. Subject a. Incomnet hereby sells, conveys, transfers and delivers to the terms and conditions of this Agreement, on the Closing Date (as hereinafter defined) ConnectInc shall, immediately upon receipt of the stock certificate for the Closing Shares, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) sell, transfer, convey, assign and deliver to Buyer, in electronic form wherever possible, and Buyer shall purchase and accept Ciera all of the assets of Incomnet, as of the date hereof, used in connection with the
b. below, free and clear of all Encumbrances except for Permitted Encumbrances. The Assets conveyed to Ciera hereunder include the following:
i. Incomnet's rights and interests to all accounts of subscribers to Incomnet's telecommunications services;
ii. Incomnet's leased facilities, including all leasehold improvements, located at 2801 Main Street, Irvine, Xxxxxxxxxx 00000 (xxxxxxxxxxxx, xxx "Xxxxxxxies"); provided, however, that transferred leasehold improvements shall include only those leasehold improvements owned by Incomnet that are transferable or removable in accordance with the terms of the Facilities lease; together with all of Incomnet's rights as sublessor with respect to any subleases of any portion of the Facilities;
iii. Incomnet's rights, title and interest in and under those contracts, agreements, leases and executory contracts identified on Schedule 1.1.a.iii (collectively, the "Assigned Contracts");
iv. Incomnet's rights, title and interest in and under all licenses, permits, tariffs, authorizations, approvals and certifications that any governmental entity has issued to Incomnet (to the extent that such particular Assets are assignable under applicable law) (collectively, the "Permits");
v. Incomnet's right, title and interest of ConnectInc in and to the following (collectively referred to herein as the "Market Maker Assets"):
(a) the assets listed on Part 1.1(a) of the Disclosure Schedule, including the computer software source code of ConnectInc's Market Maker product;
(b) all contracts, contractual rights, purchase orders and sales orders of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as described in paragraph (h) below shall be deemed to be Market Maker Assets), which list shall specifically identify any maintenance agreements, subject to the Assumed Liabilities (as defined in Section 1.3)intangible telecommunications assets, including, without limitation, those Contracts listed on Part 1.1(b) of the Disclosure Scheduletelecommunications numbering codes, but excepting those contractslocating routing codes and "800" and "888" numbers and other customer billing and inquiry numbers, contractual rights,
1. purchase orders carrier identification codes and sales orders of ConnectInc directly relating to OEM sales of ConnectInc's Market Maker products as part of a suite of productsother operating codes;
(c) vi. Incomnet's right, title and interest in and to all contracts, contractual rights, purchase orders and sales orders and other agreements of ConnectInc directly relating only to ConnectInc's Market Maker Assets that are being negotiated as of the Closing Date (collectively, the "Prospective Contracts"), subject to the limitations set forth in Section 4.3intellectual property, including, without limitation, those Prospective Contracts listed on Part 1.1(c) all confidential proprietary information, technical knowledge, its website(s), Internet domain names and URL's, trade secrets necessary for the operation of the Disclosure ScheduleBusiness, including the name "Incomnet" and any other trade names used in Incomnet's business (the "Incomnet Intellectual Property");
vii. Incomnet's rights under warranties, representations and guaranties that suppliers and manufacturers made in connection with the Assets;
viii. Copies of Incomnet's books and records (dthe "Books and Records") relating to the computersBusiness;
ix. Incomnet's inventory (including debit card inventory), office furniture, fixtures, and equipment and any other fixed assets relating to the software applications residing on Business;
x. Incomnet's goodwill relating to the hardware used Business;
xi. All cash and banking or deposit accounts of Incomnet, the balances of which shall be transferred by those employees Incomnet to Ciera upon the opening by Ciera of Seller who become employees a new bank account;
xii. All notes and accounts receivable of Buyer pursuant to Section 4.2Incomnet, as set forth on Part 1.1(d) whether recorded or unrecorded, billed or not billed, or assigned for collection, accrued and existing in respect of services of the Disclosure Schedule;
Business up to the Closing (e) all hardware and software used in the testing of only the Market Maker product, as set forth on Part 1.1(e) of the Disclosure Schedule"Accounts Receivable"); and
(f) xiii. Any other assets of Incomnet relating to the copyrightsBusiness, trademarks and tradenames used in connection with ConnectInc's Market Maker product (but excluding trademarks and tradenames associated with ConnectInc's OEM sales of wherever located, except for the Market Maker product as part of a suite of products) and any registrations with any governmental body relating thereto, including the trademarks listed on Part 1.1(f) of the Disclosure Schedule;Excluded Assets.
(g) all records, files, invoices, customer lists, accounting records and business records relating only to ConnectInc's Market Maker product; provided that the items described b. Notwithstanding anything in this paragraph Agreement to the contrary, neither the Cash Consideration, the GlobalCom Stock nor the other Incomnet assets identified in Schedule 1.1.b (gcollectively, the "Excluded Assets") need not be physically delivered to Buyer until are included in the 15th day after the Closing; and
(h) ConnectInc's accounts receivable with respect to maintenance associated with its stand-alone Market Maker product, which Seller represents is $162,183 as of the Closing (and Seller agrees to forward any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each of the Market Maker Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares (as defined in Section 1.4), except as provided in subparagraphs (g) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer Ciera is provided herein is not assignable without the consent of another party, purchasing under this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without any requirement on the part of Seller or Buyer to pay any money pursuant to or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party to the assignment of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Material Seller Contact (or any right or benefit arising thereunder, including without limitation the enforcement for theAgreement.
Appears in 1 contract
Assets to be Transferred. Subject to the terms For and conditions of this Agreement, on the Closing Date (as hereinafter defined) ConnectInc shall, immediately upon receipt in consideration of the stock certificate for the Closing Shares, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) sell, transfer, convey, assign and deliver to Buyer, in electronic form wherever possiblepurchase price set forth below, and Buyer shall purchase of the mutual covenants and accept agreements herein contained, Seller agrees to SELL, TRANSFER, CONVEY AND DELIVER to Purchaser, and Purchaser agrees to PURCHASE AND ACCEPT from Seller, the following described property, being intended to describe all of the assets of the pawnshop business located at 000 Xxxxx Xxxxxxx Xxx., Xxxx Xxxxxxx, CO, 80524 except those excluded in Paragraph 2 below:
A. All furniture, fixtures, equipment and supplies of Seller located at and used by Seller in the operation of the pawnshop business owned by Seller at the address stated above.
B. All merchandise inventory owned and/or acquired through Seller's pawnshop business or otherwise located at the address stated above, and all existing rights to the merchandise;
C. All contracts to purchase and accounts receivable of Seller, together with all promissory notes, contracts to purchase and other evidences of indebtedness owed to Seller arising out of the pawnshop business (including, but not limited to, the contracts to purchase accounts of Seller heretofore furnished to Purchaser for examination), together with all of Seller's rights in and with respect to pawned merchandise securing same. Contracts to purchase inventory consisting of firearms is specifically included in the assets, but title to such inventory shall remain vested in Seller until Purchaser has obtained its own license from the Bureau of Alcohol, Tobacco and Firearms (ATF) for the pawnshop, on which date title to such inventory shall vest in Purchaser;
D. The right of Seller to not engage in any business of the nature presently being operated by Seller at the address referred to above, or any business similar thereto or any degree competitive therewith, including any business subject to regulation as a pawnshop by any governmental entity or agency or regulation under the Federal Firearms Act, as hereinafter set out;
E. All layaway receivables and contracts, together with all promissory notes, contracts and evidences of indebtedness owed to Seller on such layaway receivables and contracts, together with all rights to evidences of indebtedness, claims, choses in action, liens, pledges and other instruments and security of every kind and nature owned by Seller as security for and in any manner securing or collateral to or for said layaway receivables and/or contracts;
F. All of Seller's right, title and interest of ConnectInc in and to the following leasehold assets in and upon the premises presently occupied by the pawnshop business located at 000 Xxxxx Xxxxxxx Xxx., Xxxx Xxxxxxx, CO, 80524.
G. Goodwill and all compilations and lists of present or former customers and/or borrowers, all mailing lists, all business records (collectively referred including all records relating to herein as borrowers, loan accounts and contracts heretofore charged off on the "Market Maker Assets"):
(a) the assets listed on Part 1.1(a) books of the Disclosure ScheduleSeller, including the computer software source code of ConnectInc's Market Maker product;
(b) and all contracts, contractual rights, purchase orders pawn and sales orders of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as described in paragraph (h) below shall be deemed to be Market Maker Assetsinventory records), which list shall all telephone numbers, listings and advertisements (including specifically identify any maintenance agreements, subject to the Assumed Liabilities (as defined telephone number(s) set out above presently used by Seller in Section 1.3the pawnshop business), includingall prepaid expenses, without limitationall utility deposits, those Contracts listed on Part 1.1(bthe right (but not the obligation) of the Disclosure Scheduleto assume Seller's experience rating or other rating with any employment commission or regulatory agency, but excepting those contractsall transferable and non-transferable licenses and permits (specifically including Seller's pawnshop license), contractual rights,
1. purchase orders unless otherwise excluded, and sales orders of ConnectInc directly relating to OEM sales of ConnectInc's Market Maker products as part of a suite of products;
(c) all contracts, contractual rights, purchase orders and sales orders intangibles and other agreements rights and privileges of ConnectInc directly relating only Seller desirable or useful to ConnectInc's Market Maker Assets that are being negotiated as Purchaser for the purpose of continuing the Closing Date (collectivelypawnshop business of Seller and maintaining and retaining the existing customers and business of Seller, together with the "Prospective Contracts")right to use the trade name or assumed name of Seller set out above, subject to the limitations set forth in Section 4.3, including, without limitation, those Prospective Contracts listed on Part 1.1(c) of the Disclosure Schedule;
(d) the computers, office equipment and the software applications residing on the hardware any other trade names presently or formerly used by those employees of Seller who become employees of Buyer pursuant to Section 4.2, as set forth on Part 1.1(d) of the Disclosure Schedule;
(e) all hardware and software used in the testing of only the Market Maker productpawnshop business, as set forth on Part 1.1(e) of the Disclosure Schedule; and
(f) the copyrights, trademarks and tradenames used in connection with ConnectInc's Market Maker product (but excluding trademarks and tradenames associated with ConnectInc's OEM sales of the Market Maker product as part of a suite of products) and any registrations with any governmental body relating thereto, including the trademarks listed on Part 1.1(f) of the Disclosure Schedule;
(g) all records, files, invoices, customer lists, accounting records and business records relating only name so similar as to ConnectInc's Market Maker product; provided that the items described in this paragraph (g) need not be physically delivered to Buyer until the 15th day after the Closing; and
(h) ConnectInc's accounts receivable with respect to maintenance associated with its stand-alone Market Maker product, which Seller represents is $162,183 as of the Closing (and Seller agrees to forward any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each of the Market Maker Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares (as defined in Section 1.4), except as provided in subparagraphs (g) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer is provided herein is not assignable without require the consent of another partySeller to its rightful use, this Agreement for any lawful business purpose. In connection with the right to use such similar name, Seller shall withdraw all Certificates or Notices on file in any recording office in order that the name referred to above or any similar name may be used by Purchaser. Further, Purchaser shall have the right, but not constitute an assignment the obligation, 2 to hire any and all of the present employees of Seller. Purchaser shall also have the right, but not the obligation, to assume any rights, privileges or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without duties under any requirement on the part of Seller or Buyer to pay continuing contracts relating in any money pursuant to or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party way to the assignment operation of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Material Seller Contact (or any right or benefit arising thereunder, including without limitation the enforcement for thepawnshop business.
Appears in 1 contract
Assets to be Transferred. Subject to At the terms and conditions of this Agreement, Closing (defined below) on the Closing Date (defined below) and effective as hereinafter defined) ConnectInc shall, immediately upon receipt of the stock certificate for Effective Time (defined below), VRS shall and shall cause the Closing Shares, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) Business Sellers to sell, transferassign, convey, assign transfer and deliver convey to Buyer, in electronic form wherever possibleBuyer and the Business Buyers, and Buyer and the Business Buyers shall purchase purchase, acquire and accept from VRS and the Business Sellers, all of Seller's and the Business Sellers' right, title and interest in, to and under all the assets, properties and rights, real, personal or mixed, tangible or intangible, wherever located, which are owned or held by VRS and the Business Sellers in connection with the Businesses as of ConnectInc the Effective Time (the "ASSETS"), including without limitation all assets, properties and rights owned or held by VRS and the Business Sellers and described in and to the following clauses (collectively referred to herein as the "Market Maker Assets"a) through (k):
(a) the assets listed on Part 1.1(a) The inventory of automobiles and automobile parts located at each of the Disclosure ScheduleFacilities (defined below) (collectively, including the computer software source code of ConnectInc's Market Maker product"INVENTORY"). The Inventory is sold in "as is" condition;
(b) all contractsThe equipment, contractual rightsvehicles, purchase orders machinery and sales orders fixtures used in the operation of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as the Businesses and more particularly described in paragraph EXHIBIT A (hcollectively, "EQUIPMENT");
(c) below shall be deemed to be Market Maker Assets), which list shall specifically identify any maintenance agreements, subject to The goodwill of the Assumed Liabilities Businesses (as defined in Section 1.3the "GOODWILL"), including, without limitation, those Contracts listed on Part 1.1(b) the full benefit of all trade contracts, commitments and agreements, whether verbal or written to which VRS and the Business Sellers may be entitled in respect of the Disclosure Schedule, but excepting those contracts, contractual rights,
1. purchase orders and sales orders of ConnectInc directly relating to OEM sales of ConnectInc's Market Maker products as part of a suite of productsBusinesses;
(cd) All licenses, registrations, permits and qualifications of the Businesses required by any governmental or regulatory authority, to the extent transferable;
(e) All trade secrets, research data, designs, proprietary know-how, technical information, specifications and materials in whatever form used in or relating to the Businesses and all rights and interests in and to the Intellectual Property (defined below), including all goodwill associated therewith;
(f) All right, title and interest of the Seller and the Business Sellers in computer software and documentation therefor used in the Businesses, including all electronic data, processing systems, source codes, program specifications, input data, report layouts and formats, operating and training manuals, and all revisions, enhancements and modifications thereto, in whatever form and media;
(g) All books, records, files and documents relating to the Businesses, including without limitation, books of account, ledgers, journals, sales and purchase records, lists of suppliers, cost and pricing information, business reports, plans and projections and all other correspondence, data and information, financial or otherwise in any format and media whatsoever; the full benefit of all maintenance contracts, contractual rights, purchase orders warranties and sales orders and other agreements of ConnectInc directly relating only warranty rights (express or implied) which may apply to ConnectInc's Market Maker Assets that are being negotiated as any of the Closing Date Assets;
(h) The full benefit of any other rights or privileges belonging to VRS and the Business Sellers related to the Businesses, together with the exclusive right of Buyer and the Business Buyers to each represent itself as carrying on the Businesses in continuation of and in succession to VRS and the Business Sellers, including use of the existing telephone numbers and, subject to the License Agreement, the exclusive right to use any words indicating that the Businesses are so carried on, including the right to use the Trademark (defined below) in connection with the Businesses to be carried on by Buyer and the Business Buyers;
(i) The existing leases with Banc of America Leasing & Capital, LLC ("B of A Leasing") for the forklifts and car crushers described on EXHIBIT B (collectively, the "Prospective ContractsELKO LEASES"), subject including the right to exercise the limitations set forth buy-out option, for the amount described on EXHIBIT B, under the Elko Leases financed through Bank of America, N.A. and B of A Leasing. Notwithstanding anything else contained herein, the Parties acknowledge that the Buyer shall exercise the buy-out option contained in Section 4.3the Elko Leases by paying directly to B of A Leasing an amount representing the entire outstanding amount owed to B of A Leasing under the Elko Leases, includingand Bank of America N.A. or B of A Leasing, without limitationas applicable, those Prospective Contracts listed on Part 1.1(c) of shall release the Disclosure ScheduleSeller from any obligation under the Elko Leases;
(dj) $60,000 in petty cash, at least $8,000 of which shall be in the computers, office equipment and cash drawers at xxxx of the software applications residing four Facilities (defined below) on the hardware used by those employees of Seller who become employees of Buyer pursuant to Section 4.2, as set forth on Part 1.1(d) of the Disclosure Schedule;
(e) all hardware and software used in the testing of only the Market Maker product, as set forth on Part 1.1(e) of the Disclosure ScheduleClosing Date; and
(fk) Any warranties and guaranties relating to the copyrightsEquipment or the Facilities and all files, trademarks books and tradenames used records in connection with ConnectInc's Market Maker product (but excluding trademarks and tradenames associated with ConnectInc's OEM sales the possession of Seller, any Business Seller, any Property Owner or any of its affiliates or agents, relating to or reasonably required for the post-closing operation of the Market Maker product as part of a suite of products) and any registrations with any governmental body relating thereto, including the trademarks listed on Part 1.1(f) of the Disclosure Schedule;
(g) all records, files, invoices, customer lists, accounting records and business records relating only to ConnectInc's Market Maker product; provided that the items described in this paragraph (g) need not be physically delivered to Buyer until the 15th day after the Closing; and
(h) ConnectInc's accounts receivable with respect to maintenance associated with its stand-alone Market Maker product, which Seller represents is $162,183 as of the Closing (and Seller agrees to forward any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each of the Market Maker Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares (as defined in Section 1.4), except as provided in subparagraphs (g) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer is provided herein is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without any requirement on the part of Seller or Buyer to pay any money pursuant to or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party to the assignment of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Material Seller Contact (or any right or benefit arising thereunder, including without limitation the enforcement for theBusiness.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Schnitzer Steel Industries Inc)
Assets to be Transferred. Subject to the terms and conditions of this Agreement, on the Closing Date (as hereinafter defined) ConnectInc shall, immediately upon receipt of the stock certificate for the Closing Shares, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) Seller shall sell, transferassign, convey, assign transfer and deliver convey to Buyer, in electronic form wherever possible, Buyer and Buyer shall purchase from Seller, the following specific assets which are owned by Seller or in which Seller has any right, title or interest, and accept all which are used or held for use by Seller in the conduct of its business of servicing Hitachi DX and HCX switches and telephones, software and Centigram voice mail systems attached to such switches (the "Business"):
(a) All right, title and interest of ConnectInc Seller in, to and under the maintenance and service agreements described on Schedule 1.1(a), and all rights, privileges, claims, and causes of action in favor of Seller relating or pertaining to such contracts and agreements (the "Service Contracts");
(b) All right, title, interest and privilege of Seller in providing maintenance and service to those customers described on Schedule 1.1(b) on a "time and material" or "month-to-month" basis (the following "Non-Contract Service Rights") (the Service Contracts and the Non-Contract Service Rights being collectively referred to herein as the "Market Maker AssetsService Base"):
(a) the assets listed on Part 1.1(a) of the Disclosure Schedule, including the computer software source code of ConnectInc's Market Maker product);
(bc) all contractsSeller's inventory of spare parts related to the Business, contractual rights, purchase orders and sales orders of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as described in paragraph on Schedule 1.1(c) (h) below the "Inventory"); provided, however, that Buyer shall be deemed purchase only those items of Inventory that Buyer determines after testing by Buyer to be Market Maker Assetsin new or like new condition pursuant to Section 2.2(c); and
(d) All right, title and interest of Seller as lessor in and to that certain Lease Agreement currently with Comfort Inn (Edgewood, MD) as lessee, formerly with Invitation Inn, Inc. as lessee, Customer #53649 (the "Lease Agreement"), which list shall specifically identify any maintenance agreementsand all of Seller's right, subject title and interest in and to the Assumed Liabilities equipment which is the subject of the Lease Agreement (the "Leased Equipment");
(e) All refundable deposits and security deposits paid to Seller arising under the Service Base and the Lease Agreement, all prepaid service fees paid to Seller and attributable to services to be performed under the Service Base after the Effective Date (as defined in Section 1.3), including, without limitation, those Contracts listed on Part 1.1(b2.2(a) below) of the Disclosure Schedule, but excepting those contracts, contractual rights,
1. purchase orders and sales orders of ConnectInc directly relating transfer to OEM sales of ConnectInc's Market Maker products as part of a suite of products;
(c) all contracts, contractual rights, purchase orders and sales orders and other agreements of ConnectInc directly relating only to ConnectInc's Market Maker Assets that are being negotiated as Buyer of the underlying Service Contract or Non-Contract Service Right, and that portion of any lease payments made under the Lease Agreement and attributable to use of the Leased Equipment after the Closing Date (collectively, collectively the "Prospective ContractsPrepaid Fees"), subject to the limitations set forth in Section 4.3, including, without limitation, those Prospective Contracts listed on Part 1.1(c) of the Disclosure Schedule;
(d) the computers, office equipment and the software applications residing on the hardware used by those employees of Seller who become employees of Buyer pursuant to Section 4.2, as set forth on Part 1.1(d) of the Disclosure Schedule;
(e) all hardware and software used in the testing of only the Market Maker product, as set forth on Part 1.1(e) of the Disclosure Schedule; and
(f) the copyrights, trademarks and tradenames used in connection with ConnectInc's Market Maker product (but excluding trademarks and tradenames All goodwill associated with ConnectInc's OEM sales of the Market Maker product as part of a suite of products) and any registrations with any governmental body relating thereto, including Business. All the trademarks listed on Part 1.1(f) of the Disclosure Schedule;
(g) all records, files, invoices, customer lists, accounting records and business records relating only to ConnectInc's Market Maker product; provided that the items described in this paragraph (g) need not be physically delivered assets being transferred to Buyer until the 15th day after the Closing; and
(h) ConnectInc's accounts receivable with respect pursuant to maintenance associated with its stand-alone Market Maker product, which Seller represents is $162,183 as of the Closing (and Seller agrees to forward any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each of the Market Maker Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares (as defined in Section 1.4), except as provided in subparagraphs (g) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer is provided herein is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without any requirement on are collectively referred to herein as the part of Seller or Buyer to pay any money pursuant to or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party to the assignment of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Material Seller Contact (or any right or benefit arising thereunder, including without limitation the enforcement for the"Assets."
Appears in 1 contract
Samples: Asset Purchase Agreement (Xeta Corp)
Assets to be Transferred. Subject to Except as otherwise provided in Section 2.03, on the terms and subject to the conditions of this Agreement, on at the Closing Date (and effective as hereinafter defined) ConnectInc shall, immediately upon receipt of the stock certificate for the Closing SharesEffective Time, as defined in Section 1.4 (through a xxxx of sale executed by ConnectInc) Seller shall sell, transfer, convey, assign and deliver transfer to Buyer, in electronic form wherever possible, and Buyer shall purchase and accept Purchaser all of the Seller’s right, title and interest of ConnectInc in and to the following properties and assets on an “as is” basis that are used exclusively in connection with the Restaurants (collectively referred to herein as collectively, the "Market Maker “Assets"):”) free and clear of all Liens except for Permitted Liens:
(a) A leasehold interest in the assets listed on Part 1.1(a) of Owned Real Property and a subleasehold interest in the Disclosure Schedule, including the computer software source code of ConnectInc's Market Maker product;Leased Real Property; DB02/0502991.0000/9783465.8 WP01
(b) all contracts, contractual rights, purchase orders and sales orders of ConnectInc directly relating only to ConnectInc's Market Maker product (provided that no accounts receivable of ConnectInc other than as described in paragraph (h) below shall be deemed to be Market Maker Assets), which list shall specifically identify any maintenance agreements, subject to the Assumed Liabilities (as defined in Section 1.3), including, without limitation, those Contracts listed on Part 1.1(b) of the Disclosure Schedulefurniture, but excepting those contractstrade fixtures and equipment that are owned by Seller and located at a Restaurant as of the Effective Time (collectively, contractual rights,
1. purchase orders and sales orders of ConnectInc directly relating to OEM sales of ConnectInc's Market Maker products as part of a suite of productsthe “Equipment”);
(c) all contracts, contractual rights, purchase orders and sales orders and other agreements of ConnectInc directly relating only the Contracts to ConnectInc's Market Maker Assets which Seller is a party that are being negotiated in effect as of the Closing Date Effective Time and that relate exclusively to the Business listed on Schedule 2.02(c) (collectively, the "Prospective “Assigned Contracts"”), subject to the limitations set forth in Section 4.3, including, without limitation, those Prospective Contracts listed on Part 1.1(c) of the Disclosure Schedule;
(d) the computerscash bank for each Existing Restaurant and other prepaid and special items listed on Schedule 2.02(d) (collectively, office equipment and the software applications residing on the hardware used by those employees of Seller who become employees of Buyer pursuant to Section 4.2, as set forth on Part 1.1(d) of the Disclosure Schedule“Special Items”);
(e) the Inventory and all hardware other inventories, supplies and software used other tangible personal property that are owned by Seller and located in the testing of only the Market Maker product, a Restaurant as set forth on Part 1.1(e) of the Disclosure Schedule; andEffective Time including counters, shelving, racks, slat walls, display cases, décor, tables, seating, signs, promotional items and materials, new and unused uniforms, smallwares and office supplies (collectively, the “Personal Property”);
(f) to the copyrightsextent transferable under applicable law, trademarks and tradenames used in connection with ConnectInc's Market Maker product (but excluding trademarks and tradenames associated with ConnectInc's OEM sales the Permits necessary for the operation of the Market Maker product Business as part currently operated, and Seller will provide to Purchaser prior to the Closing a list of a suite of products) and any registrations all Permits held by Seller with any governmental body relating thereto, including respect to the trademarks listed on Part 1.1(f) of the Disclosure Schedule;Business; and
(g) all records, files, invoices, customer lists, accounting records and business records relating only to ConnectInc's Market Maker product; provided that the items described in this paragraph (g) need not be physically delivered to Buyer until the 15th day after the Closing; and
(h) ConnectInc's accounts receivable of Seller’s rights against its suppliers with respect to maintenance associated with its stand-alone Market Maker product, which express or implied warranties made in the sale to Seller represents is $162,183 as of the Closing Assets to the extent such rights (and Seller agrees i) automatically transfer to forward any of such funds promptly to Buyer if received by Seller following the Closing). ConnectInc shall deliver to Buyer each Purchaser as the new owner of the Market Maker Assets that can be physically delivered immediately after its receipt of the stock certificate for the Closing Shares Assets, (as defined in Section 1.4), except as provided in subparagraphs (gii) and (h) above. To the extent that any Material Seller Contract for which assignment to Buyer is provided herein is do not assignable without require the consent of another party, this Agreement shall any third parties and (iii) do not constitute an assignment impose any costs or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer shall use their reasonable efforts (without any requirement expenses on the part of Seller or Buyer to pay any money pursuant to or agree to any change in the terms of any such Material Seller Contract) to obtain the consent of such other party to the assignment of any such Material Seller Contract to Buyer in all cases in which such consent is or may be required for such assignment. Pending the obtaining of a consent to any such Contract that is a Material Seller Contract under Section 2.5, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such Material Seller Contact (or any right or benefit arising thereunder, including without limitation the enforcement for theits Affiliates.
Appears in 1 contract
Samples: Asset Purchase Agreement (NPC Restaurant Holdings, LLC)
