Purchase and Sale of Assets Subject to the terms and conditions set forth below, Seller agrees to assign, sell and transfer to Buyer, and Buyer agrees to purchase from Seller, all of Seller’s rights, title and interest in and to the assets, properties and business (except for Excluded Assets) of every kind and description, wherever located, real, personal, tangible or intangible, used solely by or otherwise relating solely to the Stations as the same shall exist on the Closing Date (as defined herein) (collectively, the Station Assets”). Seller agrees that the Station Assets on the Closing Date shall be free and clear of any and all liens, claims, petitions, charges and encumbrances of any nature whatsoever (“Liens”), and shall include:
(a) the Licenses and any and all other FCC authorizations pertaining to the Stations set forth on Schedule 1(a) hereto;
(b) any and all pending applications before the FCC which relate solely to the Stations;
(c) all books and records relating solely to the Stations;
(d) all of Seller’s proprietary information, technical information, demographic and market data, coverage maps, diagrams and the like which relate solely to the Station or to the future business of the Stations;
(e) all of the Seller’s land, leases, land purchase contracts, tower registrations, tower permits relating solely to the Stations, including but not limited to all rights, title and interest under the leases, subleases, licenses, occupancy agreements or other contracts relating solely to the Stations, as set forth on Schedule 1(e) hereto (collectively the “Real Property”);
(f) all of the Seller’s right, title and interests under existing agreements, contracts, commitments, leases relating solely to the operation of the Stations as more fully described on Schedule 1(f) hereto; and
(g) all of the Seller’s supplies, equipment, inventories and other property purchased but not installed, as and relating solely to the operation of the Stations, as set forth on Schedule 1(g) hereto. In connection with the purchase of Station Assets, Buyer shall assume and agree to pay, perform and discharge when due the following obligations arising in connection with the Station Assets and operation of the business, as the same shall exist on the Closing Date (collectively, the “Assumed Liabilities”): (i) those liabilities arising from the Station Assets that are scheduled by Seller in Schedule 3.6 set forth herein and agreed upon by both Parties, (ii) all obligations of Seller under the leases, contacts and other agreements included in the Station Assets arising and to be performed on or after the Closing Date, but excluding any such obligations arising or to be performed prior to the Closing Date.
Purchase and Sale of Equity Interest 1.1 Grant Rights Approved by Party C, Party B (the “Transferor”) hereby exclusively and irrevocably grants to Party A or any designated person (“Designated Persons”) an option to purchase, at any time according to steps determined by Party A, and at the price specified in Section 1.3 of this Agreement, from the Transferor a portion or all of the equity interests held by Party B in Party C (the “Option”). No Option shall be granted to any third party other than Party A and/or the Designated Persons. The “person” set forth in this Agreement means any individual person, corporation, joint venture, partnership, enterprise, trust or non-corporation organization.
Purchase and Sale of Acquired Assets On the Closing Date but effective as of the Effective Date, each Seller shall sell, transfer, deliver, convey and assign to Purchaser, and Purchaser shall purchase, acquire, and accept from such Seller, upon the terms and conditions stated herein, all of such Seller’s right, title and interest in and to the following:
(a) All hardware, third-party software licenses, documentation, third-party trademark licenses, fixtures, furniture, equipment and other assets of such Seller, in each case, which is necessary to satisfy such Seller’s obligations under the Assumed Contracts, as identified on Schedule 1.1 attached hereto (the “Transferred Resources”), to the fullest extent transferable by such Seller to Purchaser (or if not at all transferable, a mutually acceptable arrangement shall be structured as provided in Section 8.4);
(b) All right, title, and interest of such Seller in and to the source code, object code, schematics, design tools, and all associated documentation for all of such Seller’s past or present software products (including but not limited to Connect CCB, Connect IXC, Access IM, Connect RTR, IPC, WPM, Marketing Dashboard, Revenue Assurance Suite, Communications Resources Manager (CRM), and EBP&P), and all of such Seller’s software tools, subroutines, and other components, whether completed or under development, all prior or unreleased versions thereof, and all tangible embodiments (and all copies, extracts, or analyses thereof) in any medium whatsoever, and all right, title, and interest of such Seller in and to its copyrights, patents, trademarks, service marks, trade dress, and any applications therefor (including U.S. patent application number 12055933), and any related Intellectual Property Rights (as defined in Section 2.2) of such Seller, and all rights under any and all contracts for the acquisition or development of any of the foregoing, including without limitation assignments to such Seller, covenants to assign inventions to such Seller (including without limitation those assignments contained in subcontractor agreements), covenants to cooperate with such Seller’s obtaining protections of intellectual property, other provisions for ownership by such Seller of a work-for-hire, any and all confidentiality and non-disclosure agreements in favor of a Seller and all agreements similar to the foregoing, in each case to the fullest extent transferable by such Seller to Purchaser (or if not at all transferable, a mutually acceptable arrangement shall be structured as provided in Section 8.4) (collectively, the “Intellectual Property”);
(c) All right, title, and interest (including rights to payment for customer services which services were rendered on or following the Effective Date or for Software (as hereinafter defined) for periods on or following the Effective Date) of such Seller in and under the Assumed Contracts (as hereinafter defined) on and after the Effective Date, including any successor agreements to the Assumed Contracts which are entered into by such Seller with respect to the Business prior to the Closing Date (the “Contract Rights”);
(d) Cash in an amount, when all such payments made by Sellers are aggregated, equal to Ninety Seven Thousand Three Hundred Seventy-Four Dollars and 52/100 ($97,374.52) (“Prepaid Customer Funds” and, together with the Transferred Resources, Intellectual Property, and Contract Rights, the “Acquired Assets”), which amount represents prepaid but undelivered maintenance obligations under the Assumed Contracts with Bresnan (in an amount equal to $7,760); Xxxxxxxxxx (in an amount equal to $40,000); Westel (in an amount equal to $6,533); and Page One (in an amount equal to $43,081.52);
(e) All receivables and rights to payment arising with respect to customer services provided on or after the Effective Date or Software for periods on or following the Effective Date relating to any Acquired Assets;
(f) Copies of those books and records of such Seller directly related to the Acquired Assets, including invoices, purchase orders, and vendor and customer correspondence; and
(g) All goodwill and other intangible assets associated with the foregoing; in each case wherever located, but specifically excluding those assets described in Section 1.2.
Merger, Consolidation, Acquisition and Sale of Assets (a) Enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a substantial portion of the assets or stock of any Person or permit any other Person to consolidate with or merge with it.
Merger and Sale of Assets If at any time there shall be a capital reorganization of the shares of the Company's stock (other than a combination, reclassification, exchange or subdivision of shares otherwise provided for herein), or a merger or consolidation of the Company with or into another corporation when the Company is not the surviving corporation, or the sale of all or substantially all of the Company's properties and assets to any other person (hereinafter referred to as a "Merger Event"), then, as a part of such Merger Event, lawful provision shall be made so that the Warrantholder shall thereafter be entitled to receive, upon exercise of the Warrant, the number of shares of preferred stock or other securities of the successor corporation resulting from such Merger Event, equivalent in value to that which would have been issuable if Warrantholder had exercised this Warrant immediately prior to the Merger Event. In any such case, appropriate adjustment (as determined in good faith by the Company's Board of Directors) shall be made in the application of the provisions of this Warrant Agreement with respect to the rights and interest of the Warrantholder after the Merger Event to the end that the provisions of this Warrant Agreement (including adjustments of the Exercise Price and number of shares of Preferred Stock purchasable) shall be applicable to the greatest extent possible.
Consolidation, Merger and Sale of Assets (a) The Issuer will not consolidate with or merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of its property and assets (as an entirety or substantially an entirety in one transaction or a series of related transactions) to, any Person or permit any Person to merge with or into the Issuer unless:
(1) the Issuer shall be the continuing Person, or the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or that acquired or leased such property and assets of the Issuer shall be a corporation, general or limited partnership, limited liability company or other entity (other than an individual) organized and validly existing under the laws of the United States of America or any state or jurisdiction thereof and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all of the obligations of the Issuer on the Notes and under this Indenture;
(2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction on a pro forma basis the Issuer, or any Person becoming the successor obligor of the Notes, as the case may be, could Incur at least $1.00 of Indebtedness under paragraphs (a), (b) and (c) of Section 4.07; provided, however, that this clause (3) shall not apply to a consolidation or merger with or into a Wholly Owned Subsidiary with a positive net worth; provided further, however, that, in connection with any such merger or consolidation, no consideration (other than Capital Stock (other than Disqualified Stock) in the surviving Person or the Issuer) shall be issued or distributed to the holders of Capital Stock of the Issuer; and
(4) the Issuer delivers to the Trustee an Officers’ Certificate (attaching the arithmetic computations to demonstrate compliance with clause (3) above) and an Opinion of Counsel, in each case stating that such consolidation, merger or transfer and such supplemental indenture complies with this Section 5.01 and that all conditions precedent provided for herein relating to such transaction have been complied with; provided, however, that clause (3) above does not apply if, in the good faith determination of the Board of Directors of the Issuer, whose determination shall be evidenced by a Board Resolution, the principal purpose of such transaction is to change the state of domicile of the Issuer; provided further, however, that any such transaction shall not have as one of its purposes the evasion of the foregoing limitations.
(b) Except as provided in Section 10.04, no Subsidiary Guarantor may consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, unless:
(1) either such Subsidiary Guarantor shall be the continuing Person or the Person (if other than such Subsidiary Guarantor) formed by such consolidation or into which such Subsidiary Guarantor is merged shall be a corporation or other legal entity organized and validly existing under the laws of the United States of America or any state or jurisdiction thereof and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all of the obligations of such Subsidiary Guarantor under the Subsidiary Guarantee of such Subsidiary Guarantor and under this Indenture; and
(2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing.
(c) For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Subsidiary Guarantors, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Issuer, will be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
(d) Upon any such consolidation, combination or merger of the Issuer or a Subsidiary Guarantor, or any such sale, conveyance, transfer, lease or other disposition of all or substantially all of the assets of the Issuer in accordance with this Section 5.01, in which the Issuer or such Subsidiary Guarantor is not the continuing obligor under the Notes or its Subsidiary Guarantee, the surviving entity formed by such consolidation or into which the Issuer or such Subsidiary Guarantor is merged or the entity to which the sale, conveyance, transfer, lease or other disposition is made will succeed to, and be substituted for, and may exercise every right and power of, the Issuer or such Subsidiary Guarantor under this Indenture, the Notes and the Subsidiary Guarantees with the same effect as if such surviving entity had been named therein as the Issuer or such Subsidiary Guarantor and, except in the case of a lease, the Issuer or such Subsidiary Guarantor, as the case may be, will be released from the obligation to pay the principal of and interest on the Notes or in respect of its Subsidiary Guarantee, as the case may be, and all of the Issuer’s or such Subsidiary Guarantor’s other obligations and covenants under the Notes, this Indenture and its Subsidiary Guarantee, if applicable.
(e) Notwithstanding the foregoing, any Subsidiary Guarantor may (i) consolidate with or merge with or into the Issuer or another Subsidiary Guarantor or (ii) convert into a corporation, general or limited partnership, limited liability company or trust organized under the laws of such Subsidiary Guarantor’s jurisdiction of organization or the laws of the United States of America or any state or jurisdiction thereof.
Merger, Sale of Assets, etc Subject to Section 4.2, if at any time while this Note remains outstanding and unexpired there shall be (a) a reorganization (other than a combination, reclassification, exchange or subdivision of shares otherwise provided for herein), (b) a merger or consolidation of the Company with or into another corporation in which the Company is not the surviving entity, or a merger in which the Company is the surviving entity but the shares of the Company's capital stock outstanding immediately prior to the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise or (c) a sale or transfer of the Company's stock, properties or assets as, or substantially as, an entirety to any other Person, then, as a part of such reorganization, merger, consolidation, sale or transfer, lawful provision shall be made so that Holder shall thereafter be entitled to receive by converting this Note the number of shares of stock or other securities or property of the successor corporation resulting from such reorganization, merger, consolidation, sale or transfer that a holder of the shares deliverable upon conversion of this Note would have been entitled to receive in such reorganization, consolidation, merger, sale or transfer if this Note had been converted immediately before such reorganization, merger, consolidation, sale or transfer (notwithstanding that the Stockholder Approval may not yet have been obtained), all subject to further adjustment as provided in this Section 4. The foregoing provisions of this Section 4.1 shall similarly apply to successive reorganizations, consolidations, mergers, sales and transfers and to the stock or securities of any other corporation. If the per share consideration payable to Holder hereof for shares in connection with any such transaction is in a form other than cash or marketable securities, then the value of such consideration shall be determined in good faith by the Company's Board of Directors based on the amount the Holder would have otherwise been entitled to receive had the transaction or transactions not occurred. In all events, appropriate adjustment (as determined in good faith by the Company's Board of Directors) shall be made in the application of the provisions of this Note with respect to the rights and interests of Holder after the transaction, to the end that the provisions of this Note shall be applicable after that event, as near as reasonably may be, in relation to any shares or other property deliverable after that event upon conversion of this Note. The Company shall be obligated to retain and set aside, or otherwise make fair provision for exercise of the right of the Holder to receive, the shares of stock and/or other securities, cash or other property provided for in this Section 4.1.
Merger/Sale of Assets A merger or consolidation of the Company whether or not approved by the Board of Directors of the Company, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets.
Sale of Assets; Merger and Consolidation Subject to right of Shareholders, if any, to vote pursuant to Section 6.1, the Trustees may cause (i) the Trust or one or more of its Portfolios to the extent consistent with applicable law to sell all or substantially all of its assets to, or be merged into or consolidated with, another Portfolio, statutory trust (or series thereof) or Company (or series thereof), (ii) the Shares of the Trust or any Portfolio (or Class) to be converted into beneficial interests in another statutory trust (or series thereof) created pursuant to this Section 9.4, (iii) the Shares of any Class to be converted into another Class of the same Portfolio, or (iv) the Shares to be exchanged under or pursuant to any state or federal statute to the extent permitted by law. In all respects not governed by statute or applicable law, the Trustees shall have power to prescribe the procedure necessary or appropriate to accomplish a sale of assets, merger or consolidation including the power to create one or more separate statutory trusts to which all or any part of the assets, liabilities, profits or losses of the Trust may be transferred and to provide for the conversion of Shares of the Trust or any Portfolio (or Class) into beneficial interests in such separate statutory trust or trusts (or series or class thereof).
Sale of Assets, Etc (a) Subject to the penultimate paragraph of this clause (a), the Company will not and will not permit any of its Restricted Subsidiaries to make any Transfer, provided that the foregoing restriction does not apply to a Transfer if:
(i) the property that is the subject of such Transfer constitutes (A) inventory, (B) equipment, fixtures, supplies or materials no longer required in the operation of the business of the Company and the Restricted Subsidiaries or that is obsolete or (C) checks, drafts, money orders or other instruments with respect to accounts receivable that are to be collected in the ordinary course of business, and, in each case, such Transfer is in the ordinary course of business;
(ii) such Transfer is (A) from a Restricted Subsidiary to the Company or a Wholly-Owned Restricted Subsidiary or (B) from the Company to a Wholly-Owned Restricted Subsidiary;
(iii) such Transfer is subject to Section 11.2 and satisfies the requirements thereof; or
(iv) such Transfer is not a Transfer described in clause (i) through clause (iii) above, and all of the following conditions shall have been satisfied with respect to such Transfer (each such Transfer is referred to as a "Basket Transfer"):
(A) in the good faith opinion of the Board of Directors of the Company, the Transfer is in exchange for consideration with a Fair Market Value at least equal to the greater of book value or the Fair Market Value of the property exchanged, is in the best interests of the Company and the Restricted Subsidiaries, and is not detrimental to the interests of the holders of Notes,
(B) immediately after giving effect to such transaction no Default or Event of Default would exist, and
(C) immediately after giving effect to such Transfer,
(I) the book value of all property that was the subject of any Basket Transfer occurring during the period beginning with the date that is 12 calendar months preceding the first day of the month in which such Basket Transfer occurred and ending on the date of such Basket Transfer does not exceed 10% of Consolidated Tangible Net Assets determined as of the end of the then most recently fiscal year of the Company ended prior to such period, and
(II) the Operating Income Contribution Percentage of all property that was the subject of any Basket Transfer occurring during the period beginning with the date that is 12 calendar months preceding the first day of the month in which such Basket Transfer occurred and ending on the date of such Basket Transfer does not exceed 10%. For purposes of determining the book value of any property that is the subject of a Transfer, such book value shall be the book value of such property, as determined in accordance with GAAP, at the time of the consummation of such Transfer, provided that, in the case of a Transfer of any capital stock or other equity interests of a Subsidiary, as provided in Section 11.9(b), the book value thereof shall be deemed to be an amount equal to
