Common use of Purchase and Sale of Acquired Assets Clause in Contracts

Purchase and Sale of Acquired Assets. Subject to the terms and conditions of this Agreement, including Section 2.4(b), (a) the Sellers shall (and Parent shall cause each of the Sellers to) sell, assign, convey, transfer and deliver to Buyer or its designees at and as of the Initial Closing (or, if applicable, any Subsequent Closing), the Acquired Assets, including all of the issued and outstanding capital stock of the Purchased Entities owned by the Sellers and set forth on Schedule 5.2 (the “Securities”), to be purchased at such Closing, all free and clear of all Liens and Excluded Liabilities; and (b) in exchange therefor, Buyer shall pay the Adjusted Purchase Price applicable to the Acquired Assets in accordance with Section 3.1 or 3.2, as applicable, and shall accept, assume and agree to pay, perform or otherwise discharge, in accordance with the respective terms and subject to the respective conditions thereof, the Assumed Liabilities to be assumed at such Closing. The Sellers shall pay all Cure Amounts in respect of the Assumed Contracts and Assumed IP Licenses and shall bear all Transfer Taxes related to the Sellers’ sale of the Acquired Assets and the assumption of the Assumed Contracts and Assumed IP Licenses. After any Closing, Buyer shall be entitled to exercise all rights attached or accruing to the Acquired Assets purchased at such Closing, including the right to receive all dividends, distributions or any return of capital declared, paid or made by any of the Purchased Entities in respect of the Securities on or after the relevant Closing Date.

Purchase and Sale of Acquired Assets. Subject to 2.1.1. On the terms and subject to the conditions of set forth in this Agreement, including Section 2.4(b)at the Closing, (a) the Sellers shall (and Parent shall cause each of the Sellers to) sell, convey, assign, convey, transfer and deliver to Buyer the Purchaser and/or one or more of Purchaser’s Subsidiaries (as determined by the Purchaser in its designees at discretion), and as in reliance on the accuracy of the Initial Closing representations and warranties and the performance of the agreements of the Sellers, the Purchaser and/or one or more of Purchaser’s Subsidiaries (oras determined by the Purchaser in its discretion) shall purchase, if applicableacquire and accept from the Sellers, any Subsequent Closing)all of the Sellers’ rights, title and interest in and to the Acquired Assets, including all of the issued and outstanding capital stock of the Purchased Entities owned by the Sellers and set forth on Schedule 5.2 (the “Securities”)subject to adjustment under Section 2.9, to be purchased at such Closing, all free and clear of all Liens Liens, other than Permitted Liens, and Excluded without any further liability or obligation of any kind, known or unknown, contingent, matured or otherwise, whether currently existing or hereinafter created that are not included in the Assumed Liabilities; . In the event that any Acquired Assets are to be purchased by any Subsidiaries of Purchaser, separate instruments of transfer shall be executed with such Subsidiaries and (b) in exchange therefor, Buyer each such Subsidiary shall pay the Adjusted Purchase Price applicable be deemed to be a Purchaser under this Agreement to the Acquired Assets in accordance extent and with Section 3.1 or 3.2, as applicable, and shall accept, assume and agree to pay, perform or otherwise discharge, in accordance with the respective terms and subject to the respective conditions thereof, the Assumed Liabilities to be assumed at such Closing. The Sellers shall pay all Cure Amounts in respect of the Assumed Contracts and Assumed IP Licenses and shall bear all Transfer Taxes related to the Sellers’ sale of the Acquired Assets and the assumption of the Assumed Contracts and Assumed IP Licenses. After any Closing, Buyer shall be entitled to exercise all rights attached or accruing to the Acquired Assets purchased at by such Subsidiary. In the event that any Acquired Assets are owned or held by a Subsidiary of a Seller, separate instruments of transfer shall be executed with such Subsidiaries and each such Subsidiary shall be deemed to be a Seller under this Agreement to the extent and with respect to the Acquired Assets purchased from such Subsidiary. USDATA and the Purchaser shall cause their respective Subsidiaries to execute such separate instruments. In the event that the assignment, transfer, conveyance or delivery of any Acquired Asset to the Purchaser or any Subsidiary thereof involves or gives rise to any liability or obligation, other than such obligation or liability which is an Assumed Liability, then such liability or obligation shall be deemed to be an Excluded Liability as further described in Section 2.2., except that with respect to such liabilities or obligations arising from transfers or assignments occurring after the Closing Date, then such liabilities and obligations shall be shared between USDATA and the Purchaser on an equal basis, provided that the Purchaser’s aggregate liability for all such transfers and assignments together shall in no event exceed a total amount of $50,000 and any amount in excess of such $50,000 shall be borne and paid solely by USDATA and shall be deemed to be an Excluded Liability. 2.1.2. Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer, conveyance or delivery or attempted sale, assignment, transfer, conveyance or delivery to the Purchaser of any Acquired Asset is prohibited by any applicable law or would require any Governmental Authority or third-party authorizations, approvals, consents, or waivers and such authorizations, approvals, consents or waivers shall not have been obtained prior to the Closing Date, and the obtaining thereof is not a condition to the Closing, then following the Closing, and without limiting the provisions set forth in Sections 5.8 and 5.10, the Sellers shall be deemed to hold the respective Acquired Asset and all rights and privileges with respect thereto as a trustee for the sole benefit of the Purchaser and shall manage such Acquired Asset solely in accordance with instructions of the Purchaser, and the parties shall use their respective reasonable best efforts, and cooperate with each other, to obtain promptly such authorizations, approvals, consents or waivers. Pending such authorization, approval, consent, or waiver, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to the Purchaser the benefits of use of such Acquired Asset. Once such authorization, approval, consent or waiver for the sale, assignment, transfer, conveyance or delivery of an Acquired Asset not sold, assigned, transferred, conveyed or delivered at the Closing is obtained, the applicable Seller shall promptly assign, transfer convey or deliver, or cause to be assigned, transferred, conveyed and delivered, such Acquired Asset to the Purchaser for no additional consideration. To the extent that any such Acquired Asset cannot be transferred or the full benefits of use of any such Acquired Asset cannot be provided to the Purchaser following the Closing, the Purchaser and the applicable Seller shall enter into such arrangements for no additional consideration from the Purchaser (including subleasing or subcontracting if permitted) to provide to the right Purchaser the operational equivalent of obtaining such authorization, approval, consent or waiver. Without limitation of the foregoing, in the event that at the Closing the registration of any Transferred Intellectual Property in the name of the Purchaser at the relevant Governmental Authority was not yet completed and perfected then without limitation of any other rights of the Purchaser, to receive the extent necessary to grant to the Purchaser full and unrestricted use of such Transferred Intellectual Property, the Sellers hereby grant to the Purchaser, effective as of the Closing and subject to any Third Party Licenses, an irrevocable, perpetual, royalty free, fully paid, worldwide, unrestricted, exclusive license to make any use or exploitation with respect thereto. In the event that any Asset was not duly transferred or assigned to the Purchaser or its Subsidiary at the Closing, and notwithstanding, the Closing was completed, then the Sellers shall, and shall cause their Subsidiaries to, take any action after the Closing, as reasonably requested by Purchaser, to allow Purchaser to enforce any rights or privileges of Sellers or such Subsidiaries under or with respect to such Assets, including pursuit of legal proceedings, solely for the benefit of and at the expense of Purchaser, and Sellers shall fully cooperate with Purchaser in order to allow Purchaser to achieve the desired result in this regard. 2.1.3. Notwithstanding anything herein to the contrary, from and after the Closing Date, the Sellers shall retain all dividendsof their right, distributions title and interest in and to, and there shall be excluded from the sale, conveyance, assignment or any return transfer to the Purchaser hereunder, all assets of capital declaredthe Sellers other than the Acquired Assets (the “Excluded Assets”). Without limiting the generality of the foregoing, paid or made by the Excluded Assets include all right, title and interest of the Sellers and/or any of their Subsidiaries in (i) the Purchased Entities shares and assets of eMake Corp., a Delaware corporation and all its Subsidiaries, (ii) the shares and assets of USDATA Foreign Sales Corp, a company incorporated in respect Barbados, (iii) the shares of any and all other Subsidiaries of USDATA, (iv) the Securities on or after Excluded Patents, solely to the relevant Closing Dateextent set forth in Section 5.15 and subject to the patents license granted to Purchaser under Section 5.15, and (v) the Retained Cash.

Purchase and Sale of Acquired Assets. Subject to (a) Upon the terms and subject to the conditions of set forth in this Agreement, including Section 2.4(b), (a) the Sellers shall (and Parent shall cause each effective as of the Sellers to) Closing Date, Seller agrees to sell, assign, conveytransfer, transfer convey and deliver to Buyer or its designees at Purchaser, and Purchaser agrees to purchase from Seller, all of Seller’s right, title and interest in and to the Acquired Assets (as of the Initial Closing (or, if applicable, any Subsequent Closingdefined below), the Acquired Assets, including all of the issued and outstanding capital stock of the Purchased Entities owned by the Sellers and set forth on Schedule 5.2 (the “Securities”), to be purchased at such Closing, all free and clear of all Liens and Excluded Liabilities; and Encumbrances except Permitted Encumbrances. (b) in exchange thereforIn connection with the Transaction, Buyer on the Closing Date, Seller shall pay the Adjusted Purchase Price applicable to the Acquired Assets in accordance with Section 3.1 or 3.2, as applicable, take (and shall acceptcause its Affiliates to take) any and all actions that may be required, assume or reasonably requested by Purchaser, to transfer good and agree marketable title to pay, perform or otherwise discharge, in accordance with the respective terms and subject to the respective conditions thereof, the Assumed Liabilities to be assumed at such Closing. The Sellers shall pay all Cure Amounts in respect of the Assumed Contracts and Assumed IP Licenses and shall bear all Transfer Taxes related to the Sellers’ sale of the Acquired Assets free and the assumption clear of the Assumed Contracts and Assumed IP Licensesall Encumbrances (except Permitted Encumbrances) to Purchaser. After any Closing, Buyer Seller shall be entitled to exercise deliver possession of all rights attached or accruing to of the Acquired Assets purchased to Purchaser on the Closing Date at the location and by such Closingmeans as are reasonably designated by Purchaser, including the right and Seller shall further deliver to receive Purchaser proper assignments, bills of sale, conveyances and other instruments of sale and/or transfer in forms reasonably satisfactory to Purchaser in order to convey to Purchaser good and marketable title to all dividendsAcquired Assets, distributions or any return free and clear of capital declaredall Encumbrances (except Permitted Encumbrances), paid or made by any as well as such other instruments of the Purchased Entities in respect of the Securities on sale and/or transfer as Purchaser may reasonably request (whether at or after the relevant Closing Date) to evidence and effect the Transaction contemplated herein. Seller agrees that, to the extent any Acquired Assets are owned or held by any Affiliate of Seller, Seller shall also cause good and marketable title to such Acquired Assets to be transferred and assigned to Purchaser free and clear of all Encumbrances (except Permitted Encumbrances) on the Closing Date.

Purchase and Sale of Acquired Assets. Subject to (a) On the terms and subject to the conditions of set forth in this Agreement, including Section 2.4(b)at the Closing, (a) the Sellers Company and the Selling Subsidiaries shall (and Parent shall cause each of the Sellers to) sell, convey, assign, convey, transfer and deliver to Buyer or its designees at the Buyers, and as in reliance on the accuracy of the Initial Closing (orrepresentations and warranties and the performance of the covenants of the Company and the Selling Subsidiaries, if applicablethe Buyers shall purchase, any Subsequent Closing)acquire and accept from the Company and the Selling Subsidiaries, all of the Company’s and the Selling Subsidiaries’ rights, title and interest in and to the Acquired Assets, including all of the issued and outstanding capital stock of the Purchased Entities owned by the Sellers and set forth on Schedule 5.2 (the “Securities”), to be purchased at such Closing, all free and clear of all Liens Liens, other than Permitted Liens, and Excluded without any further Liability that is not included in the Assumed Liabilities; . The identity of the Buyers for the specific Acquired Assets shall be specified in the General Assignments and Xxxx of Sales delivered at Closing. In the event that as a result of Buyer’s request to have the Company or a Selling Subsidiary sell assets to a Buyer’s Affiliate in a jurisdiction outside the jurisdiction of such selling entity, any incremental costs of such transfer incurred by the seller, if any, due to such transfer being to a foreign jurisdiction, shall be borne by the Buyers. (b) Any Acquired Assets purchased by any Affiliates of the Buyer (the “Additional Buyers”) (or by any other Affiliate of the Buyers) may require separate instruments of transfer that shall be executed with such Additional Buyers (or Affiliate of Buyers). In the event that any Acquired Assets are owned or held by a Selling Subsidiary, separate instruments of transfer shall be executed with such Selling Subsidiaries and except to the extent stated otherwise, reference to the “Company” in exchange therefor, this Agreement shall include the Selling Subsidiaries. The Company and the Buyer shall pay cause their respective subsidiaries and Affiliates to execute such separate instruments. In the Adjusted Purchase Price applicable event that the assignment, transfer, conveyance or delivery of any Acquired Asset to the Buyers or any Affiliate thereof involves or gives rise to any Liability, other than such Liability which is an Assumed Liability, then such Liability shall be deemed to be an Excluded Liability as further described in Section 1.2(b). (c) Notwithstanding anything herein to the contrary, from and after the Closing Date, the Company and the Selling Subsidiaries shall retain all of the right, title and interest in and to, and there shall be excluded from the sale, conveyance, assignment or transfer to the Buyers hereunder, all assets of the Company and the Selling Subsidiaries other than the Acquired Assets in accordance with Section 3.1 or 3.2, as applicable, and shall accept, assume and agree to pay, perform or otherwise discharge, in accordance with (the respective terms and subject to “Excluded Assets”). Without limiting the respective conditions thereofgenerality of the foregoing, the Assumed Liabilities to be assumed at such Closing. The Sellers shall pay Excluded Assets include all Cure Amounts in respect right, title and interest of the Assumed Contracts Company and Assumed IP Licenses and shall bear all Transfer Taxes related to the Sellers’ sale of the Acquired Assets and the assumption of the Assumed Contracts and Assumed IP Licenses. After any Closing, Buyer shall be entitled to exercise all rights attached or accruing to the Acquired Assets purchased at such Closing, including the right to receive all dividends, distributions or any return of capital declared, paid or made by any of the Purchased Entities Company Subsidiaries in respect of the Securities those assets identified on or after the relevant Closing DateSchedule 1.1(c).

Purchase and Sale of Acquired Assets. Subject to (a) On the terms and subject to the conditions set forth in this Agreement (and the Assignment and Assumption Agreements and the General Assignments and Bills of this Agreement, including Section 2.4(bSale to be executed at the Closing), (a) at the Closing, the Company and the Additional Sellers shall (and Parent shall cause each of the Sellers to) sell, convey, assign, convey, transfer and deliver to Buyer or its designees at the Buyers, and as in reliance on the accuracy of the Initial Closing (orrepresentations and warranties and the performance of the covenants of the Company and the Additional Sellers, if applicablethe Buyers shall purchase, any Subsequent Closing)acquire and accept from the Company and the Additional Sellers, all of the Company’s and the Additional Sellers’ rights, title and interest in and to the Acquired Assets, including all of the issued and outstanding capital stock of the Purchased Entities owned by the Sellers and set forth on Schedule 5.2 (the “Securities”), to be purchased at such Closing, all free and clear of all Liens Liens, other than Permitted Liens, and Excluded without any further Liability that is not included in the Assumed Liabilities; and . All Company Subsidiaries whose shares shall be purchased by the Buyer (or one or more of Buyer’s Affiliates) are set forth in Schedule 1.1(a) attached hereto. (b) in exchange thereforAny Acquired Assets may be purchased by any Affiliate of the Buyer, Buyer as shall pay be designated by the Adjusted Purchase Price applicable Buyer, and any such Acquired Assets so purchased shall require separate instruments of transfer which shall be executed with such Affiliate(s) of Buyer. In the event that any Acquired Assets are owned or held by an Additional Seller, separate instruments of transfer shall be executed with such Additional Seller and each such Additional Seller shall be deemed to be the Company under this Agreement to the extent and with respect to the Acquired Assets in accordance with Section 3.1 or 3.2purchased from such Additional Seller. In the event that any of the Buyer’s Affiliates purchases any Acquired Assets, the Buyer shall cause each such Buyer’s Affiliate to sign separate Assignment and Assumption Agreements and General Assignments and Bills of Sale, as applicable, through which each such Buyer’s Affiliate agrees to perform the obligations of the Buyer in the Agreement with respect to such Acquired Assets. The Company and the Buyer shall acceptcause their respective subsidiaries and Affiliates to execute such separate instruments. In the event that the assignment, assume and agree to paytransfer, perform conveyance or otherwise discharge, in accordance with the respective terms and subject delivery of any Acquired Asset to the respective conditions thereofBuyer or any Affiliate thereof involves or gives rise to any Liability, other than such Liability which is an Assumed Liability, then such Liability shall be deemed to be an Excluded Liability as further described in Section 1.2(b). (c) Notwithstanding anything herein to the contrary, from and after the Closing Date, the Assumed Liabilities to be assumed at such Closing. The Company and the Additional Sellers shall pay retain all Cure Amounts in respect of the Assumed Contracts right, title and Assumed IP Licenses interest in and to, and there shall bear all Transfer Taxes related be excluded from the sale, conveyance, assignment or transfer to the Sellers’ Buyers hereunder, all assets of the Company and the Additional Sellers other than the Acquired Assets (the “Excluded Assets”). Without limiting the generality of the foregoing, the Excluded Assets include all right, title and interest of the Company and any of the Company Subsidiaries in those assets identified on Schedule 1.1(c) (the “Excluded Subsidiaries”). (d) For the avoidance of doubt, the sale of the Acquired Assets and Assumes Liabilities by the assumption Additional Sellers shall be effected by separate General Assignments and Bills of Sale and Assignment and Assumption Agreements, to be entered into by the Assumed Contracts and Assumed IP Licenses. After any Additional Sellers at the Closing, Buyer which documents shall be entitled to exercise all rights attached or accruing to the Acquired Assets purchased at such Closing, including the right to receive all dividends, distributions or any return constitute separate instruments of capital declared, paid or made by any of the Purchased Entities in respect of the Securities on or after the relevant Closing Datesale.

Purchase and Sale of Acquired Assets. Subject to 2.1.1. On the terms and subject to the conditions of set forth in this Agreement, including Section 2.4(b)at the Closing, (a) the Sellers shall (and Parent shall cause each of the Sellers to) sell, convey, assign, convey, transfer and deliver to Buyer the Purchaser and/or one or more of Purchaser's Subsidiaries (as determined by the Purchaser in its designees at discretion), and as in reliance on the accuracy of the Initial Closing representations and warranties and the performance of the agreements of the Sellers, the Purchaser and/or one or more of Purchaser's Subsidiaries (oras determined by the Purchaser in its discretion) shall purchase, if applicableacquire and accept from the Sellers, any Subsequent Closing)all of the Sellers' rights, title and interest in and to the Acquired Assets, including all of the issued and outstanding capital stock of the Purchased Entities owned by the Sellers and set forth on Schedule 5.2 (the “Securities”)subject to adjustment under Section 2.9, to be purchased at such Closing, all free and clear of all Liens Liens, other than Permitted Liens, and Excluded without any further liability or obligation of any kind, known or unknown, contingent, matured or otherwise, whether currently existing or hereinafter created that are not included in the Assumed Liabilities; . In the event that any Acquired Assets are to be purchased by any Subsidiaries of Purchaser, separate instruments of transfer shall be executed with such Subsidiaries and (b) in exchange therefor, Buyer each such Subsidiary shall pay the Adjusted Purchase Price applicable be deemed to be a Purchaser under this Agreement to the Acquired Assets in accordance extent and with Section 3.1 or 3.2, as applicable, and shall accept, assume and agree to pay, perform or otherwise discharge, in accordance with the respective terms and subject to the respective conditions thereof, the Assumed Liabilities to be assumed at such Closing. The Sellers shall pay all Cure Amounts in respect of the Assumed Contracts and Assumed IP Licenses and shall bear all Transfer Taxes related to the Sellers’ sale of the Acquired Assets and the assumption of the Assumed Contracts and Assumed IP Licenses. After any Closing, Buyer shall be entitled to exercise all rights attached or accruing to the Acquired Assets purchased at by such Subsidiary. In the event that any Acquired Assets are owned or held by a Subsidiary of a Seller, separate instruments of transfer shall be executed with such Subsidiaries and each such Subsidiary shall be deemed to be a Seller under this Agreement to the extent and with respect to the Acquired Assets purchased from such Subsidiary. USDATA and the Purchaser shall cause their respective Subsidiaries to execute such separate instruments. In the event that the assignment, transfer, conveyance or delivery of any Acquired Asset to the Purchaser or any Subsidiary thereof involves or gives rise to any liability or obligation, other than such obligation or liability which is an Assumed Liability, then such liability or obligation shall be deemed to be an Excluded Liability as further described in Section 2.2., except that with respect to such liabilities or obligations arising from transfers or assignments occurring after the Closing Date, then such liabilities and obligations shall be shared between USDATA and the Purchaser on an equal basis, provided that the Purchaser's aggregate liability for all such transfers and assignments together shall in no event exceed a total amount of $50,000 and any amount in excess of such $50,000 shall be borne and paid solely by USDATA and shall be deemed to be an Excluded Liability. 2.1.2. Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer, conveyance or delivery or attempted sale, assignment, transfer, conveyance or delivery to the Purchaser of any Acquired Asset is prohibited by any applicable law or would require any Governmental Authority or third-party authorizations, approvals, consents, or waivers and such authorizations, approvals, consents or waivers shall not have been obtained prior to the Closing Date, and the obtaining thereof is not a condition to the Closing, then following the Closing, and without limiting the provisions set forth in Sections 5.8 and 5.10, the Sellers shall be deemed to hold the respective Acquired Asset and all rights and privileges with respect thereto as a trustee for the sole benefit of the Purchaser and shall manage such Acquired Asset solely in accordance with instructions of the Purchaser, and the parties shall use their respective reasonable best efforts, and cooperate with each other, to obtain promptly such authorizations, approvals, consents or waivers. Pending such authorization, approval, consent, or waiver, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to the Purchaser the benefits of use of such Acquired Asset. Once such authorization, approval, consent or waiver for the sale, assignment, transfer, conveyance or delivery of an Acquired Asset not sold, assigned, transferred, conveyed or delivered at the Closing is obtained, the applicable Seller shall promptly assign, transfer convey or deliver, or cause to be assigned, transferred, conveyed and delivered, such Acquired Asset to the Purchaser for no additional consideration. To the extent that any such Acquired Asset cannot be transferred or the full benefits of use of any such Acquired Asset cannot be provided to the Purchaser following the Closing, the Purchaser and the applicable Seller shall enter into such arrangements for no additional consideration from the Purchaser (including subleasing or subcontracting if permitted) to provide to the right Purchaser the operational equivalent of obtaining such authorization, approval, consent or waiver. Without limitation of the foregoing, in the event that at the Closing the registration of any Transferred Intellectual Property in the name of the Purchaser at the relevant Governmental Authority was not yet completed and perfected then without limitation of any other rights of the Purchaser, to receive the extent necessary to grant to the Purchaser full and unrestricted use of such Transferred Intellectual Property, the Sellers hereby grant to the Purchaser, effective as of the Closing and subject to any Third Party Licenses, an irrevocable, perpetual, royalty free, fully paid, worldwide, unrestricted, exclusive license to make any use or exploitation with respect thereto. In the event that any Asset was not duly transferred or assigned to the Purchaser or its Subsidiary at the Closing, and notwithstanding, the Closing was completed, then the Sellers shall, and shall cause their Subsidiaries to, take any action after the Closing, as reasonably requested by Purchaser, to allow Purchaser to enforce any rights or privileges of Sellers or such Subsidiaries under or with respect to such Assets, including pursuit of legal proceedings, solely for the benefit of and at the expense of Purchaser, and Sellers shall fully cooperate with Purchaser in order to allow Purchaser to achieve the desired result in this regard. 2.1.3. Notwithstanding anything herein to the contrary, from and after the Closing Date, the Sellers shall retain all dividendsof their right, distributions title and interest in and to, and there shall be excluded from the sale, conveyance, assignment or any return transfer to the Purchaser hereunder, all assets of capital declaredthe Sellers other than the Acquired Assets (the "EXCLUDED ASSETS"). Without limiting the generality of the foregoing, paid or made by the Excluded Assets include all right, title and interest of the Sellers and/or any of their Subsidiaries in (i) the Purchased Entities shares and assets of eMake Corp., a Delaware corporation and all its Subsidiaries, (ii) the shares and assets of USDATA Foreign Sales Corp, a company incorporated in respect Barbados, (iii) the shares of any and all other Subsidiaries of USDATA, (iv) the Securities on or after Excluded Patents, solely to the relevant Closing Dateextent set forth in Section 5.15 and subject to the patents license granted to Purchaser under Section 5.15, and (v) the Retained Cash.

Purchase and Sale of Acquired Assets. Subject to the terms and conditions of this Agreement, including Section 2.4(b), (a) the Sellers shall (and Parent shall cause each of the Sellers to) sell, assign, convey, transfer and deliver to Buyer or its designees at and as of the Initial Closing (or, if applicable, any Subsequent Closing), the Acquired Assets, including all of the issued and outstanding capital stock of the Purchased Entities owned by the Sellers and set forth on Schedule 5.2 (the “"Securities”"), to be purchased at such Closing, all free and clear of all Liens and Excluded Liabilities; and (b) in exchange therefor, Buyer shall pay the Adjusted Purchase Price applicable to the Acquired Assets in accordance with Section 3.1 or 3.2, as applicable, and shall accept, assume and agree to pay, perform or otherwise discharge, in accordance with the respective terms and subject to the respective conditions thereof, the Assumed Liabilities to be assumed at such Closing. The Sellers shall pay all Cure Amounts in respect of the Assumed Contracts and Assumed IP Licenses and shall bear all Transfer Taxes related to the Sellers’ ' sale of the Acquired Assets and the assumption of the Assumed Contracts and Assumed IP Licenses. After any Closing, Buyer shall be entitled to exercise all rights attached or accruing to the Acquired Assets purchased at such Closing, including the right to receive all dividends, distributions or any return of capital declared, paid or made by any of the Purchased Entities in respect of the Securities on or after the relevant Closing Date.

Purchase and Sale of Acquired Assets. Subject to the terms and conditions of this AgreementAgreement and subject to Section 7 hereof, including Section 2.4(b), at Closing (aas hereinafter defined) the Sellers shall (and Parent shall cause each of the Sellers to) sell, assign, conveyconvey and transfer to the Purchasers, transfer and deliver the Purchasers shall purchase, free and clear of any and all Liens (as hereinafter defined), all of, and only, the assets relating to Buyer the Business specifically set forth in SCHEDULE 1.1(A) herein (the "ACQUIRED ASSETS") and the Permits identified in SCHEDULE 2.12, to the extent the same are transferable. The parties hereto specifically understand and agree that any and all inventory, cash, cash equivalents, receivables, including without limitation, all trade accounts receivable, notes receivable, receivables arising as a result of contracts in transit and receivables from manufacturers, insurance companies, service contract providers and any other vendors or its designees at and as suppliers of the Initial Closing Sellers (or, if applicable, whether on accounts owed as incentive payments or otherwise) and any Subsequent Closing)equipment used by the Sellers to transfer bulk cement from the terminals to the end user (collectively, the Acquired Assets, including all "EXCLUDED ASSETS") will remain the property of the issued and outstanding capital stock Sellers. At Caricement's election, the purchase of the Purchased Entities Acquired Assets from CCD may be structured as a stock purchase of CCD (the "STOCK PURCHASE OPTION") with the remainder of CCD's assets to be segregated and transferred to a legal entity to be formed and owned by the Sellers and set forth on Schedule 5.2 (and, in such case, the “Securities”), to be purchased at such Closing, all free and clear of all Liens and Excluded Liabilities; and (b) in exchange therefor, Buyer parties shall pay the Adjusted Purchase Price applicable agree to the use of a stock purchase agreement with customary terms and conditions. All fees, costs and expenses incurred by the Sellers in connection with the Stock Purchase Option, up to a maximum amount of $12,000, shall be borne by the Purchasers (except that any and all Taxes owing as a result of segregation of the remainder of CCD's assets from its Acquired Assets in accordance with Section 3.1 or 3.2order to effectuate the Stock Purchase Option shall be borne equally between the applicable Seller, as applicable, and shall accept, assume and agree to pay, perform or otherwise discharge, in accordance with on the respective terms and subject to the respective conditions thereof, the Assumed Liabilities to be assumed at such Closing. The Sellers shall pay all Cure Amounts in respect of the Assumed Contracts and Assumed IP Licenses and shall bear all Transfer Taxes related to the Sellers’ sale of the Acquired Assets one hand and the assumption of Purchasers, on the Assumed Contracts and Assumed IP Licenses. After any Closing, Buyer shall be entitled to exercise all rights attached or accruing to the Acquired Assets purchased at such Closing, including the right to receive all dividends, distributions or any return of capital declared, paid or made by any of the Purchased Entities in respect of the Securities on or after the relevant Closing Dateother hand).