Purchase and Sale of Assets. Upon and subject to the terms and conditions hereof, at the Closing, Arrow shall sell, transfer and assign to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arrow, all right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances: 2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”); 2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”); 2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts; 2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”); 2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing; 2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”); 2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business; 2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”); 2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively); 2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets. 2.1.11 all inventory and supplies related to the Business; 2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and 2.1.13 all of Arrow’s other tangible and intangible assets related to the Business. 2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 4 contracts
Samples: Asset Purchase Agreement (Caci International Inc /De/), Asset Purchase Agreement (American Management Systems Inc), Asset Purchase Agreement (Caci International Inc /De/)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofset forth below, at the ClosingSeller agrees to assign, Arrow shall sell, sell and transfer and assign to Acquisition SubBuyer, and Acquisition Sub shall Buyer agrees to purchase and acquire from ArrowSeller, all rightof Seller’s rights, title and interest in and to the assets utilized in connection with 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 performance and technical and administrative support of Stations as the Businesssame shall exist on the Closing Date (as defined herein) (collectively, including the following assets (the “Dagger Station Assets”), in each case . Seller agrees that the Station Assets on the Closing Date shall be free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, any and all proposalsliens, bids claims, petitions, charges and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 encumbrances of any nature whatsoever (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger ContractsLiens”), but excluding and shall include:
(a) the Dagger Leases, regardless of whether Arrow has obtained Licenses and any necessary consents and all other FCC authorizations pertaining to the assignment of such Dagger ContractsStations set forth on Schedule 1(a) hereto;
2.1.4 (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 licenses, occupancy agreements or other agreements for contracts relating solely to the use of physical locations listed Stations, as set forth on Schedule 2.1.4 1(e) hereto (collectively the “Dagger LeasesReal Property”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2f) that exist as of the Closing;
2.1.6 all of the rights in or Seller’s right, title and interests under existing agreements, contracts, commitments, leases relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate solely to the Business;
2.1.8 all operation of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets Stations as materially listed more fully described on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred1(f) hereto; and
2.1.13 (g) all of Arrowthe Seller’s supplies, equipment, inventories and other tangible property purchased but not installed, as and intangible assets related relating solely to the Business.
2.1.14 all operation of Arrow’s capital stock the Stations, as set forth on Schedule 1(g) hereto. In connection with the purchase of Station Assets, Buyer shall assume and other voting interests agree to pay, perform and discharge when due the following obligations arising in connection with the Dagger Subsidiaries Station Assets and operation of the business, as the same shall exist on the Closing Date (collectively, the “Dagger Subsidiary SharesAssumed 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.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Equity Media Holdings CORP), Asset Purchase Agreement (Equity Media Holdings CORP), Asset Purchase Agreement (Equity Media Holdings CORP)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Seller shall sell, transfer assign, transfer, convey and assign deliver, as applicable, to Acquisition SubBuyer, and Acquisition Sub Buyer shall purchase from Seller, free and acquire from Arrowclear of all Encumbrances other than Permitted Encumbrances, all of Seller’s right, title and interest in in, to and under all of the following assets, properties and rights of every kind and nature, wherever located, tangible or intangible and whether now existing or hereafter acquired as of the Closing Date (other than the Excluded Assets) (collectively, the “Purchased Assets”):
(a) the Products and the rights related thereto, including all sales, marketing and distribution rights;
(b) all Products IP and Social Media Assets;
(c) all books, documents, instruments, records, data and files (including all data and other information stored on discs, tapes or other electronic media) Related to the assets utilized in connection Business (collectively, the “Transferred Records”), including (i) all correspondence or other communications that Seller has had with a Governmental Authority relating to the performance Products, (ii) all Regulatory Documentation, (iii) all annual reports and technical adverse event reports for the Products, (iv) all other scientific or Technical Information, data or materials relating to the Products, (v) all brand plans, sales analyses, research data, marketing materials and administrative support advertising materials (including all list prices for the Products and lists of present, past and potential customers, suppliers, distributors and wholesalers), (vi) copies of all quality assurance audits of suppliers conducted by or on behalf of Seller and (v) copies of non-income Tax Returns relating to the Purchased Assets, the Business, or Assumed Liabilities;
(d) all Receivables and outstanding purchase orders for the Products (the “Assumed Purchase Orders”);
(e) all Contracts to which Seller is a party Related to the Business, including the following assets Contracts set forth on Schedule 2.01(e) (collectively, the “Dagger AssetsAssumed Contracts”);
(f) all Inventory;
(g) all Permits and Products Registrations (in each case, including any pending applications therefor) held by Seller Related to the Business, including all Permits set forth on Schedule 4.18(b), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future extent such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”)Permits are transferable;
2.1.2 (h) all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating goodwill of Seller to the Business, excluding extent associated with the contracts and other arrangements listed on Schedule 2.1.2 (Business or the “Dagger Completed Engagements”)Purchased Assets;
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 i) all of the leasesSeller’s rights, subleasesclaims, licenses or other agreements for the use credits, causes of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments action and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating set-off against Third Parties Related to the Business (other than those tangible assets, if any, which constitute to the extent relating to any Excluded Assets under Section 2.2Liability or Excluded Asset), whether liquidated or unliquidated, fixed or contingent and all Third Party guarantees thereof, including all furnitureclaims pursuant to warranties, fixturesrepresentations and guarantees made by suppliers, machinerymanufacturers, office contractors and other equipment Third Parties in connection with products or services purchased by or furnished to Seller and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related Related to the Business; provided that, for the avoidance of doubt, the foregoing shall in no event include any rights, claims, credits, causes of action or rights of set-off that Seller may have arising under this Agreement or as a result of the consummation of the transactions contemplated hereby;
2.1.12 all Permits relating (j) any refunds of Taxes for any tax period (or portion thereof) beginning after the Closing Date or for which Buyer is liable pursuant to the Business Section 6.12(a)(i) (with respect to a Straddle Period) or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferredSection 6.12(a)(ii); and
2.1.13 (k) all other assets of Arrow’s other Seller (tangible and intangible assets related or intangible) Related to the Business.
2.1.14 all . For the avoidance of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectivelydoubt, the “Dagger Subsidiary Shares”)Purchased Assets shall not include the Excluded Assets as provided in Section 2.02.
Appears in 3 contracts
Samples: Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.), Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.), Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.)
Purchase and Sale of Assets. Upon the terms and subject to the terms and conditions hereofof this Agreement, at the Closing, Arrow the Seller shall sell, transfer assign, transfer, convey and assign deliver to Acquisition Subthe Buyer, and Acquisition Sub the Buyer, in reliance on the representations, warranties and covenants of the Seller and the Owner contained herein, shall purchase and acquire from Arrowthe Seller, all of the Seller’s right, title and interest in and to all assets, properties and rights, whether tangible or intangible, personal or mixed, accrued, unaccrued or contingent (including goodwill), wherever located and whether now existing or hereafter acquired prior to the assets utilized Closing Date, related to, used or held for use in connection with the performance and technical and administrative support of the Business, including as the following assets same shall exist on the Closing Date, as reflected on or specifically referred to in the Seller’s books or financial statements or in the Schedules hereto, other than the Excluded Assets (collectively, the “Dagger Purchased Assets”), in each case free and clear of all Security Interests, except any Encumbrances other than Permitted Encumbrances, including all of the Seller’s right, title and interest under, in or to (as applicable) the following:
2.1.1 (a) all contracts inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or servicesinventories, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 wherever located (the “Dagger EngagementsInventory”);
2.1.2 (b) all contracts Contracts, including, but not limited to, the Contracts listed on Schedule 2.1(b) (the “Assigned Contracts”);
(c) all Intellectual Property Assets set forth in Schedule 2.1(c);
(d) all credits, rebates (including ACH payments, credit memos and any other arrangements pursuant rebates based on purchase volumes), prepaid expenses, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees;
(e) warranties, indemnities and all similar rights against third parties to which Arrow formerly provided goods and/or services the extent related to the Business, the Purchased Assets or the Assumed Liabilities (and proceeds in respect thereof);
(f) all insurance benefits, including rights and proceeds, arising from or relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (Purchased Assets or the “Dagger Completed Engagements”);
2.1.3 all other contracts relating Assumed Liabilities prior to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in (g) originals, or relating to intellectual property described where not available (or in the Ancillary Agreement relating to intellectual propertycase of Tax Returns), the form copies, of which is attached as Exhibit A all books and records, including, but not limited to, books of account, ledgers and general, financial and accounting records, customer lists, correspondence (the “Intellectual Property Agreement”);
2.1.7 including all of Arrow’s training materials, speaking materials and sales or promotional materials that relate correspondence with any Governmental Authority but excluding pre-Closing privileged correspondence belonging to the Business;
2.1.8 all of Arrow’s tangible assets primarily Owner and containing information regarding this Transaction), sales material and records, strategic plans, and files relating to the Business Intellectual Property Assets;
(other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including h) all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating rebates paid to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all Seller, regardless of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all bookswhen paid, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies in respect of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 (i) all goodwill and the going concern value of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 3 contracts
Samples: Asset Purchase Agreement (LQR House Inc.), Asset Purchase Agreement (LQR House Inc.), Asset Purchase Agreement (LQR House Inc.)
Purchase and Sale of Assets. Upon the terms and subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Seller shall, and shall cause the Divesting Entities to, sell, convey, assign and transfer and assign to Acquisition SubPurchaser, and Acquisition Sub Purchaser shall purchase purchase, acquire and acquire accept from ArrowSeller and the Divesting Entities, all right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security InterestsLiens (other than Permitted Liens), except Permitted Encumbrances:
2.1.1 all contracts of Seller’s and other arrangements relating the Divesting Entities’ rights, titles and interests in, to or under the Business pursuant to which Arrow is providing goods and/or servicesproperties, rights, interests and all proposalsassets set forth below (collectively, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger EngagementsPurchased Assets”):
(a) the Inventories;
(b) the Transferred IP Rights;
(c) the Governmental Authorizations set forth on Section 2.01(c) of the Disclosure Schedules (collectively, the “Transferred Governmental Authorizations”);
2.1.2 all contracts (d) the equipment and materials set forth on Section 2.01(d) of the Disclosure Schedules;
(e) subject to Section 6.07 and Section 6.08 (and other arrangements pursuant to which Arrow formerly provided goods and/or services than the items set forth in Section 2.02(f)), the following current and historical records and files (whether in hard copy format, electronic format or otherwise) primarily relating to the BusinessProducts, the Purchased Assets, or the Assumed Liabilities, and in the possession of Seller or any of its Affiliates (but excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating records or files not reasonably separable from documents or databases that do not relate exclusively to the Business Product or the Purchased Assets) and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents solely to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily extent relating to the Business (other than those tangible assetsincluding, if anyapplicable, which constitute Excluded Assets under Section 2.2)supporting Governmental Authorizations in the United States): (i) development, including all furniturequality control, fixturesquality assurance, machineryregulatory, office and pharmacovigilance records, and (ii) other equipment business records and leasehold improvements information relating exclusively to the Business and all other tangible assets as materially listed on Schedule 2.1.8 Purchased Assets (the foregoing records and documents, in each case to the extent not already in the possession or control of Purchaser, being referred to herein collectively as the “Dagger Tangible AssetsProduct Books and Records”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process ; provided, however, that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow Seller may retain copies of such books, papers, ledgers, documents the Product Books and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, Records (x) to the extent necessary to demonstrate compliance with applicable Law or pursuant to internal compliance or document retention procedures in the same may be transferred; and
2.1.13 ordinary course of business consistent in all of Arrow’s other tangible and intangible assets material respects with past practice or (y) to the extent related to any Excluded Assets or Retained Liabilities;
(f) the Business.
2.1.14 all Regulatory Information; provided, however, that Seller may retain copies of Arrow’s capital stock and other voting interests the Regulatory Information (i) to the extent necessary to demonstrate compliance with applicable Law or pursuant to internal compliance or document retention procedures in the Dagger Subsidiaries ordinary course of business consistent in all material respects with past practice or (ii) to the extent related to any Excluded Assets or Retained Liabilities;
(g) each Contract set forth on Section 2.01(g) of the Disclosure Schedules (collectively, the “Dagger Subsidiary SharesTransferred Contracts”);
(h) all goodwill associated with the Transferred Trademark Rights;
(i) other than any Excluded Assets set forth in Section 2.02(n), all guarantees, indemnities, claims, counterclaims, defenses, causes of action, rights under express or implied warranties, rights of recovery, rights of set-off, rights of subrogation and all other similar rights against any third party, to the extent relating to any Assumed Liabilities or arising from the use, ownership, possession, operation, management, business integration, sale or lease of the Purchased Assets, including with respect to past, present and future Infringement or misappropriation of any Transferred IP Rights, in each case, whether before, at or after the Cutoff Time; and
(j) any refunds related to the prepaid 2020 Prescription Drug User Fee Amendments (PDUFA) fees, to the extent actually paid to Seller.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Assertio Therapeutics, Inc), Asset Purchase Agreement (Collegium Pharmaceutical, Inc), Asset Purchase Agreement (Assertio Therapeutics, Inc)
Purchase and Sale of Assets. Upon The Seller agrees to sell and subject transfer --------------------------- to the terms Buyer, and conditions hereof, the Buyer agrees to purchase from the Seller at the Closing, Arrow shall sellsubject to the exclusions contained in (S) 2.2 and subject to and upon the other terms and conditions contained herein, transfer free and assign to Acquisition Subclear of any Lien whatsoever, except those Liens listed on Schedule 2.1(a), the following assets of the Seller --------------- (collectively, the "Acquired Assets"), and Acquisition Sub no other assets of the Seller:
(a) Date the court order referred to in (S) 3.13 of the Disclosure Schedule remains in effect, the assets subject thereto shall purchase be excluded from the Acquired Assets and acquire from Arrowretained by the Seller, all rightthe Seller thereafter shall use its best efforts to cause such court order to be vacated so that it is no longer in effect, title and interest the Seller shall as promptly as practicable after such court order is no longer in and effect convey such assets to the Buyer and thereupon such assets utilized shall constitute part of the Acquired Assets;
(b) All rights of the Seller under all licenses (other than as set forth in (S) 2.1(c)), permits, authorizations, orders, registrations, certificates, approvals, consents and franchises used or useful in connection with the performance conduct of the Business or any pending applications relating to any of the foregoing, except in each case those which would not be required by the Buyer to own and technical operate the Acquired Assets and administrative support conduct the Business in a location other than the Streamwood Facility or which are applicable solely to the Streamwood Facility, including without limitation all governmental permits, licenses, authorizations, approvals and consents described on Schedule 2.1(b); ---------------
(c) All Intellectual Property used or useful in connection with the conduct of the Business, including goodwill associated therewith, licenses and sublicenses granted in respect thereto and rights thereunder, remedies against infringements thereof and rights to protection of interest therein, including, without limitation, the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed Intellectual Property described on Schedule 2.1.1 2.1(c); ---------------
(d) All customer, distributor, supplier and mailing lists used or useful in connection with the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless conduct of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all (e) All rights of Arrow’s tangible assets primarily the Seller under Contractual Obligations relating to the conduct of the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed "Contracts") described on Schedule 2.1.8 2.1(e); ---------------
(the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and f) All raw materials, supply, work-in-process that relate to and finished goods inventories of the Business Seller, whether or not located on premises owned or leased by the Seller (together, the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively"Inventory");
2.1.10 all books(g) All files, papersplans, ledgersdocuments, documents correspondence, lists, drawings, notebooks, specifications, creative materials, advertising and promotional materials, marketing materials, studies, reports, equipment repair, maintenance or service records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies conduct of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business whether written or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferredelectronically stored or otherwise recorded; and
2.1.13 all (h) All of Arrow’s other tangible and intangible assets related the Seller's rights to the Businessuse of the name "QPF" and any variations thereof.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 3 contracts
Samples: Asset Purchase Agreement (Applied Extrusion Technologies Inc /De), Asset Purchase Agreement (Applied Extrusion Technologies Inc /De), Asset Purchase Agreement (Applied Extrusion Technologies Inc /De)
Purchase and Sale of Assets. Upon and subject (a) Subject to the terms and conditions hereofset forth in this Agreement, at the Closing, Arrow Seller shall grant, sell, convey, assign, transfer and assign deliver to Acquisition SubPurchaser, and Acquisition Sub Purchaser shall purchase and acquire accept from ArrowSeller, all of Seller’s right, title and interest interest, as of the Closing Date, in and to the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary SharesAssets”):
(i) the Owned Real Property;
(ii) the Personal Property;
(iii) the Branch Leases and Tenant Leases;
(iv) the Branch Lease Security Deposits;
(v) the Equipment Leases and the Assumed Contracts;
(vi) the Loans, plus Accrued Interest with respect to such Loans, as well as the collateral for the Loans, the Loan Documents and, to the extent owned, the servicing rights related thereto pursuant to Section 2.5;
(vii) the Negative Deposits;
(viii) the Safe Deposit Agreements;
(ix) any refunds, credits or other receivables, in each case, of, against or relating to Taxes of, or relating to, the Assets, the Assumed Liabilities or the operation of the Branches (other than Excluded Taxes); and
(x) the Records.
(b) Purchaser understands and agrees that it is purchasing only the Assets specified in this Agreement, and Purchaser has no interest in or right to any other assets, properties or interests of Seller or any of its Affiliates (including any business relationship that Seller or its Affiliates may have with any customer of Seller or its Affiliates (other than those relationships solely in respect of such customers’ status as a holder of Loans or Deposits) (all assets, properties or interests, other than the Assets, the “Excluded Assets”). For the avoidance of doubt, except as contemplated by Section 7.9, no right to the use of any sign, trade name, trademark or service xxxx, if any, of Seller or any of its Affiliates, is being sold, and any such right shall be an Excluded Asset.
Appears in 3 contracts
Samples: Purchase and Assumption Agreement (Berkshire Hills Bancorp Inc), Purchase and Assumption Agreement (Washington Federal Inc), Purchase and Assumption Agreement (Washington Federal Inc)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Seller shall sell, transfer assign, transfer, convey and assign deliver to Acquisition SubBuyer, and Acquisition Sub Buyer shall purchase from Seller, free and acquire from Arrowclear of any Encumbrances other than Permitted Encumbrances, all of Seller’s right, title and interest in in, to and to the assets utilized in connection with the performance and technical and administrative support of the Business, including under the following assets (collectively, the “Dagger Purchased Assets”)):
(i) all of Seller’s rights, title and interest in each case free all owned or leased real property, including without limitation all owned and clear of leased surface rights, all Security Interestsowned and leased mineral rights;
(ii) all contracts, except Permitted Encumbrances:
2.1.1 all contracts leases, service agreements and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating agreements related to the Business and agreed to which Arrow is a partybe assumed by Buyer as listed on Schedule 1(a)(ii) attached hereto, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts without limitation the lease agreement for the Leased Property (the “Dagger Assumed Contracts”), but excluding including rights to any security deposits. Buyer shall have the Dagger Leases, regardless of whether Arrow has obtained any necessary consents right to add and/or remove Assumed Contracts to/from Schedule 1(a)(ii) up to the assignment date of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including iii) all furniture, fixtures, machinery, office fixtures and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate related to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectivelyTangible Personal Property”);
2.1.10 (iv) all booksinventory, papersfinished goods, ledgersraw materials, documents work in progress, packaging, supplies, parts and records other inventories related to the Business (“Inventory”);
(v) all prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees related to the Business (including any such item relating to the Dagger payment of Taxes);
(vi) all of Seller’s rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
(vii) all insurance benefits, including all records rights and documents proceeds, arising from or relating to the Dagger EngagementsBusiness, the Dagger ContractsPurchased Assets or the Assumed Liabilities;
(viii) originals, the Dagger Receivablesor where not available, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such bookscopies, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents books and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 , including without limitation, books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all Permits correspondence with any Governmental Authority), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Seller’s intellectual property assets used in connection with the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred(“Books and Records”); and
2.1.13 (ix) all of ArrowSeller’s other tangible and intangible assets related goodwill relating to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 2 contracts
Samples: Asset Purchase Agreement (American Resources Corp), Asset Purchase Agreement (American Resources Corp)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Closing each Seller shall sell, transfer assign, transfer, convey and assign deliver to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arroweach Seller, all of such Seller’s assets used or held for use in the Business, other than the Excluded Assets (the “Purchased Assets”), free and clear of any Encumbrance. Without limitation of the foregoing, the Purchased Assets shall include the following:
(a) all vehicles, machinery, equipment, parts and all other tangible personal property of each Seller;
(b) all supplies and inventory owned by each Seller that are used or held for use in connection with the Business, together with all rights of such Seller against suppliers of such supplies and inventory;
(c) all (i) rights to causes of action, lawsuits, judgments, claims and demands, and (ii) rights under warranties, indemnities and all similar rights against third parties, in each case, to the extent related to any Purchased Asset or Assumed Liability;
(d) those outstanding Contracts (including personal property leases) set forth on Schedule 1.01(d), which contains only those Contracts approved by Buyer and which schedule may be updated by Buyer until November 15, 2023 (the “Assigned Contracts”);
(e) all insurance benefits, including rights and proceeds, arising from or relating to the Purchased Assets or the Assumed Liabilities;
(f) all rights of each Seller relating to deposits and prepaid expenses, claims for refunds and rights of setoff relating to the Business;
(g) all accounts receivable of the Business as of the Closing Date;
(h) all Permits and all applications therefor, and all similar rights to the extent the same are assignable;
(i) all files, documents, instruments, papers, books and records and Tax Returns used or held for use by a Seller in connection with the Business or related to the Business, the Purchased Assets or the Assumed Liabilities, including databases, customer lists, prospective customer lists, internet listings and telephone and facsimile numbers;
(j) all of each Seller’s right, title and interest in and to the assets utilized Intellectual Property owned, used or held for use, in connection with the performance and technical and administrative support of the Business, including the following assets (the “Dagger Assets”names set forth on Schedule 1.01(j), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposalsderivatives thereof, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferredgeneral intangibles; and
2.1.13 (k) all goodwill and going concern value of Arrow’s other tangible and intangible assets each Seller related to or connected with the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Interactive Strength, Inc.), Asset Purchase Agreement (Interactive Strength, Inc.)
Purchase and Sale of Assets. Upon the terms and subject to the terms and conditions hereofset forth in this Agreement, at the Closing, Arrow Seller shall sell, transfer assign, transfer, convey and assign deliver to Acquisition SubPurchaser, and Acquisition Sub Purchaser shall purchase from Seller, the following assets (the "ASSETS"), free and acquire from Arrowclear of all Encumbrances:
(a) the FCC licenses, permits and other authorizations, including any temporary waiver or special temporary authorization, issued to or held by Seller exclusively in connection with the conduct of the business and operation of the Station, including any pending applications therefor, as set forth in SCHEDULE 2.01(A) (the "FCC LICENSES");
(b) subject to Permitted Encumbrances, all of Seller's right, title and interest in and to all equipment, electrical devices, antennae, cables, tools, hardware, office furniture and fixtures, office materials and supplies, inventory, motor vehicles, spare parts and other tangible personal property of every kind and description which are held for use principally or used in the operation of the Station, including the items set forth on SCHEDULE 2.01(B), except any retirements or dispositions thereof made between the date hereof and the Closing in the ordinary course of business and consistent with past practices of Seller (the "TANGIBLE PERSONAL PROPERTY");
(c) subject to Permitted Encumbrances, all of Seller's right and interest in and to the leases identified in SCHEDULE 2.01(C) (the "LEASES") to the extent such Leases are assignable;
(d) the Station' public inspection files, filings with the FCC related to the Station, executed copies of all written Assumed Contracts, and such technical information, engineering data, rights under manufacturers' warranties as exist at Closing and relate to the assets utilized of the Station being conveyed hereunder;
(e) subject to Permitted Encumbrances, the benefit and burden, subsequent to the Closing Date, of all Time Sales Agreements and Trade Agreements, and other contracts, agreements, and leases which are used in the operation of the Station and listed on SCHEDULE 2.01(E), together with all contracts, agreements, and leases made between the date hereof and Closing in the ordinary course of business that are used in the operation of the Station (the "ASSUMED CONTRACTS");
(f) subject to Permitted Encumbrances, all of Seller's right and interest in and to the Station's call letters and the trademarks, trade names, service marks, franchises, copyrights, computer software, programs and programming material, jingles, slogans, logos, and other intangible property which are used exclusively in the operation of the Station, including, without limitation, those listed on SCHEDULE 2.01(F) (the "INTANGIBLE PROPERTY");
(g) the governmental licenses, permits and authorities, other than the FCC Licenses, issued to or held by Seller exclusively in connection with the performance and technical and administrative support conduct of the Businessbusiness and operation of the Station, including the following assets any pending applications therefor as set forth in SCHEDULE 2.01(G) (the “Dagger Assets”"PERMITS", and, together with the FCC Licenses, the "GOVERNMENTAL LICENSES"), . The Assets shall be delivered without any representation or warranty by Seller except as expressly set forth in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or servicesthis Agreement, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed Purchaser acknowledges that it has not relied on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant or been induced to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained enter into this Agreement by any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses representation or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (warranty other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assetsexpressly set forth in Article IV hereof.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Spanish Broadcasting System Finance Corp), Asset Purchase Agreement (Spanish Broadcasting System Finance Corp)
Purchase and Sale of Assets. Upon In accordance with and subject to the terms and conditions hereofof this Agreement, at on the ClosingClosing Date, Arrow Seller shall sell, transfer sell and assign to Acquisition Sub, and Acquisition Sub shall purchase from Seller, free and acquire from Arrow, clear of all Liens all right, title and interest in and to the following assets, properties, rights and claims of Seller:
(a) all of Seller's machinery, equipment, supplies, tools and other fixed assets utilized in connection with the performance (including, but not limited to product development equipment and technical and administrative support of the Businessproduction equipment), including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers those items listed on Schedule 2.1.1 2.01(a) attached hereto (collectively, the “Dagger Engagements”"EQUIPMENT");
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to (b) the Business, excluding the contracts and other arrangements Contracts listed on Schedule 2.1.2 2.01(b) attached hereto, which include, but are not limited to, all distributor, manufacturing and license agreements related to the Products (collectively, the “Dagger Completed Engagements”"ASSUMED CONTRACTS");
2.1.3 (c) all other contracts relating to the Business and to which Arrow is a partyof Seller's Intellectual Property, including employment agreementswithout limitation Patents, nondisclosure agreementsTrademarks, teaming agreementsCopyrights, joint venturesSoftware, joint marketing agreementsand Proprietary Rights, consulting agreements and subcontracts (the “Dagger Contracts”)any licenses thereto, but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations including those Patents and Trademarks listed on Schedule 2.1.4 2.01(c) attached hereto (collectively, the “Dagger Leases”"PURCHASED INTELLECTUAL PROPERTY");
2.1.5 (d) all prepaid expensesfinished goods, deposits, advances, other prepayments inventories and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training raw materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” inventories, packaging materials and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assetsother items of tangible property, including all records and documents relating to the Dagger Engagementsproducts or supplies on hand or in transit, the Dagger Contracts, the Dagger Receivables, the Dagger Workwhether located in public or off-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business site warehouses or the Dagger Facilitieson property leased by Seller, including the permits those listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries 2.01(d) attached hereto (collectively, the “Dagger Subsidiary Shares”"INVENTORY");
(e) all rights to any non-refundable prepayments under any of the Assumed Contracts (the "NON-REFUNDABLE PREPAYMENTS");
(f) all documents, records, and files (both written and electronic) concerning the Products relating to or arising from activities such as development, design, testing, clinical study, labeling, manufacture, and distribution of the Products and any modifications thereto and from FDA regulatory compliance activities, including but not limited to: the entire PMA; all PMA supplements; all correspondence with the FDA related to the Products; all Device Master Records (as such term is defined in the QSR), Design History Files (as such term is defined in the QSR) and Device History Records (as such term is defined in the QSR); all manufacturing and quality control records, documents, files, and standard operating procedures necessary to enable Parent or Acquisition Sub to manufacture (or have a third party manufacture) the Products in substantial compliance with the QSR; and all documents, records, and files of any kind established, kept or maintained in support of PMA approval for the Products and/or pursuant to any and all FDA regulatory requirements (collectively the "DOCUMENTATION");
(g) all documents, records, and files (both written and electronic) concerning the Products relating to or arising from activities such as development, design, testing, clinical study, labeling, manufacture, and distribution of the Products and any modifications thereto and arising from any foreign regulatory compliance requirements, including but not limited to: all obligations and rights governed by the Medical Device Directive; all correspondence with any foreign regulatory body or authority related to the Products; all manufacturing and quality control records, documents, files, and standard operating procedures necessary to enable Parent or Acquisition Sub to manufacture (or have a third party manufacture) the Products in substantial compliance with any foreign regulatory compliance requirements; and all documents, records, and files of any kind established, kept or maintained in support of any foreign regulatory approval for the Products and/or pursuant to any and all foreign regulatory requirements (collectively the "FOREIGN DOCUMENTATION");
(h) all Claims, or rights of Seller which would give rise to a Claim, by Seller as of the Closing Date, except for any Claims related to the Excluded Assets and Excluded Liabilities referenced in Section 2.02 and Section 2.03, respectively, below (collectively the "CHOSES IN ACTION");
(i) all guarantees, warranties, indemnities and similar rights in favor of Seller with respect to any of the Purchased Assets (collectively the "WARRANTIES");
(j) all of Seller's books and records related to the Purchased Assets, subject to the right of Seller to retain copies of all or any portion of such books and records (collectively the "BOOKS AND RECORDS"), except for any books and records included as part of the Excluded Assets referenced in Section 2.02 below;
(k) to the extent transferable or assignable, all of the Permits of Seller related to the Purchased Assets (the "TRANSFERRED PERMITS");
(l) any insurance proceeds or rights to insurance proceeds that have become Purchased Assets pursuant to Section 5.03 hereof ("INSURANCE PROCEEDS");
(m) all of Seller's rights in the PMA P990026 and supplements as set forth on Schedule 3.05(b) and as approved by the FDA (the "PURCHASED PMA");
(n) all of Seller's rights in the CE Marking as set forth on Schedule 2.01(n) and as approved by the United Kingdom BSI (the "PURCHASED CE MARKING"); and
(o) all goodwill of Seller (the "GOODWILL" collectively with the Purchased CE Marking, Purchased PMA, Insurance Proceeds, Transferred Permits, Books and Records, Warranties, Choses in Action, Foreign Documentation, Documentation, Inventory, Non-Refundable Prepayments, Purchased Intellectual Property, Assumed Contracts and Equipment, the "PURCHASED ASSETS").
Appears in 2 contracts
Samples: Asset Purchase Agreement (Animas Corp), Asset Purchase Agreement (Cygnus Inc /De/)
Purchase and Sale of Assets. Upon and subject (a) At the Closing, as hereinafter defined, Purchaser shall pay Seller for the Assets (the "PURCHASE PRICE") by issuing to the terms Seller a share certificate (the "Shares") for five million (5,000,000) shares of common stock of DOLLAR SHOTS CLUB, INC., bearing a restrictive legend.
(b) In consideration of the payment by the Purchaser of the PURCHASE PRICE, the Seller hereby agrees to sell, convey, transfer, assign, grant and conditions hereofdeliver to the Purchaser, and the Purchaser hereby agrees to purchase, acquire and accept from the Seller, at the Closing, Arrow shall sell, transfer and assign to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arrow, all of the Seller's right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support all of the BusinessAssets, including the following assets (the “Dagger Assets”), in each case free and clear of all Security InterestsLiens. The term "ASSETS" means all assets of Seller of any nature and kind whatsoever which Seller acquired through the asset purchase agreement (dated July 17, except Permitted Encumbrances:
2.1.1 all contracts 2015) with Dollar Shots Club, LLC and other arrangements relating which are related in any way to the Business pursuant to which Arrow is providing goods and/or servicesbusiness of manufacturing, mai·keting, distributing, and all proposalsselling energy drinks, bids energy "shots," supplement and offers for future such contracts enhancement drinks and arrangements, including the contracts "shots" and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 any related or similar products (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the "Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2"), including all furniturebut not limited to, fixturesthe following: (a) the inventory on hand, machinery, office equipment and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business set forth on Schedule 2.l(a) attached hereto; (b) all domain naines, websites, ecommerce sites, Twitter, Facebook and all other social media sites of any nature and Intellectual Property of Seller related to the Business as set forth on Schedule 4.6 attached hereto, including without limitation all intellectual property, formulas and other rights to the specific beverages listed therein; (c) all rights to causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Seller with respect to (a) above, whether arising by way of connterclaim or otherwise; (d) contracts to which Seller is bonnd as set forth on Schedule 4.5; and (e) all trade secrets, know-how, confidential information, and procedures relating to the operation of the Business, all general intangibles relating or associated with the operation of the Business; and all goodwill generated by, and associated with, the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Rocky Mountain High Brands, Inc.), Asset Purchase Agreement (Rocky Mountain High Brands, Inc.)
Purchase and Sale of Assets. Upon the terms and subject to the terms conditions set forth in this Agreement, Seller will, or will cause its Affiliates listed on Section 3.7 of the Seller Disclosure Schedule to, sell, transfer, convey, deliver and conditions hereofassign to Buyer, and Buyer will and hereby does purchase, at the Closing, Arrow shall sell, transfer all of Seller’s and assign to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arrow, all its Affiliates’ right, title and interest in and to all: (I)(a) Personal Property that is physically located on the assets utilized in connection with Owned Real Property, or that is reflected on the performance and technical and administrative support Financial Statements or the Final Closing Working Capital Statement, or both; (b) trade accounts or notes receivable of the Business, including the following assets Factored Receivables, and (c) to the extent Related to the Business, raw materials and supplies, manufactured and purchased parts, work-in-process, finished goods, goods in transit or other items of inventory, (including tooling, dies or molds, whether located at the Xxxxxx Facility or with suppliers); and (II) any and all other assets, rights, interests and properties Related to the Business, whether tangible or intangible, real, personal or mixed, in each case, for each of this Section 2.1(I) and 2.1(II) to the extent existing immediately prior to the Closing (collectively, the “Dagger Purchased Assets”), wherever located, including:
(a) subject to Section 2.2(l) and Section 5.10, all Contracts, including Government Contracts, Related to the Business, including all rights under or pursuant to all warranties, representations and guaranties made by suppliers or service providers in connection with the Business, the Purchased Assets or services furnished to Seller in connection with the Business or the Purchased Assets (collectively, the “Business Contracts”), and all rights and benefits thereunder;
(b) subject to Section 2.2(e), all refunds, deposits, prepayments and prepaid expenses Related to the Business;
(c) all Transferred IP;
(d) all Business IT Assets;
(e) all sales, customer and marketing information, marketing research and data and customer and mailing lists and all promotional, advertising and archival materials, whether existing in print, video, online, magnetic or other media, and all stationery, forms, labels and other similar materials, in each case, Related to the Business (it being understood that any use by Buyer or its Affiliates of the Seller Marks after the Closing is subject to the terms and conditions set forth in Section 5.4);
(f) subject to Section 2.2(d)(ii), originals of all books, records (including customer account records), ledgers, files, reports, accounts, data, plans, documents, association registrations and other membership materials, correspondence, lists, drawings, specifications and operating records, Intellectual Property files and records, invention disclosures, drawings, research and development records and materials, models, proposals, policies and procedures, technical documents and data, financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and information whether in hard copy, electronic format, magnetic or other media, in each case free Related to the Business, and clear copies of personnel records of the Hired Employees (“Books and Records”), provided that Seller may retain copies of the Books and Records;
(g) all Security Interestsclaims, causes of action, and other rights of recovery, set off or recoupment of any kind against any Person Related to the Business, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the extent such claim, cause of action or other right relates to an Excluded Asset or Excluded Liability;
(h) all telephone numbers Related to the Business;
(i) all Permits Related to the Business, Business pursuant Products or the Xxxxxx Facility, to which Arrow is providing goods and/or servicesthe extent transferable (collectively, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger EngagementsBusiness Permits”);
2.1.2 all contracts (j) the right to xxxx and other arrangements pursuant to which Arrow formerly provided goods and/or receive payment for products shipped or delivered or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating performed Related to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist unbilled as of the Closing;
2.1.6 all of the rights (k) customers, customer accounts and customer lists, in or relating to intellectual property described in the Ancillary Agreement relating to intellectual propertyeach case, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate Related to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectivelyAccounts”);
2.1.10 all books, papers, ledgers, documents and records relating to (l) the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the BusinessOwned Real Property;
2.1.12 (m) all Permits relating Intercompany Trade Receivables;
(n) all goodwill Related to the Business or any of the Dagger Facilities, including foregoing;
(o) the permits listed bank account set forth on Schedule 2.1.12, to Section 2.1(o) of the extent the same may be transferredSeller Disclosure Schedule; and
2.1.13 all of Arrow’s other tangible (p) the Assumed Plans, and intangible assets related to any trust agreement, insurance policy or services contract specifically relating thereto, and the BusinessCollective Bargaining Agreement.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Woodward, Inc.)
Purchase and Sale of Assets. Upon Subject to and subject to upon the terms and conditions hereofset forth in this Agreement, Seller shall sell, assign, transfer, convey and deliver to Purchaser and Purchaser shall purchase from Seller, at the "Closing, Arrow shall sell, transfer and assign to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arrow" (as hereinafter defined), all of the properties, assets, rights and business of Seller of every type and description, real, personal and mixed, tangible and intangible, related to, derived from or used in the operation of the Business, wherever located and whether or not reflected on the books and records of Seller (all of such assets, properties, rights and business being hereinafter sometimes collectively referred to herein as the "Acquired Assets") including, without limitation, the following:
(a) all inventory, including, without limitation, the finished goods, work in progress, components, parts and supplies related thereto identified on Schedule 1.1
(a) hereto ("Seller's Inventory");
(b) all accounts receivable (the "Transferred Receivables");
(c) all furniture, fixtures, equipment, tools, machinery, vehicles, supplies, signs, leasehold improvements and other tangible personal property of Seller;
(d) all of Seller's right, title and interest in, to and under (i) any agreements (other than any agreement or arrangement with any distributor or manufacturers' representative and those certain Severance Agreements with Xxxxxx Xxxxxxxx, Xxxx Xxxxxxx and Xxxxxxx Xxx and Separation Agreement with Xxxxxx Xxxxxxx, leases and contracts, including, but not limited to, those described in Schedule 1.1
(d) (i) hereto; (collectively the "Transferred Agreements"), and (ii) any and all prepayments, deposits and similar assets (including but not limited to cash reserves) relating to or associated with the assets utilized Transferred Agreements;
(e) all intellectual property owned or licensed by Seller or used in the operation of the Business (the "Intellectual Property"), including, without limitation, (i) trade names, trademarks, service names, service marks, copyrights, private labels, logos or designs, whether registered or not, including, without limitation, the names and marks set forth in Schedule 1.1(e) hereto and a perpetual, royalty free license to use the name "Oryx" in combination or in connection with the performance sale of power supplies; and (ii) all trade secrets, confidential and/or proprietary information, know-how, patents, processes, procedures, devices, techniques, programs, software, creations, methods, formulas, designs, drawings, and technical information related to, derived from or used in the operation of the Business;
(f) books, records and administrative support documents of Seller related to, derived from or used in the operation of the Business, including the following assets (the “Dagger Assets”)including, in each case free without limitation, all customer lists, supplier lists, price lists, telephone numbers and clear of all Security Interestslistings, except Permitted Encumbrances:
2.1.1 all contracts advertising materials and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or servicesmarketing plans, internet web pages, business files, regulatory files and approvals, business plans, financial data, operations manuals, repair or service manuals, fire, safety or environmental reports and all proposalsdata related to inventory, bids sales and offers for future such contracts accounts receivable and arrangements, including the contracts similar books and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights records used in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”)stock and minute books of ODM;
2.1.9 (g) all permits, licenses, orders, consents and approvals of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies any governmental or regulatory authority used in or related to the Business, or the operation of the Business; (h) all existing and prospective business relationships, reputation, and other intangibles which may be characterized as "good will" or "going concern value" of Seller's Business including, without limitation, the name "Oryx Power Products";
2.1.12 (i) all Permits relating choses in action, causes of action, claims and rights of recovery or setoff of every kind or character arising out of or attributable to any of the Acquired Assets or the Business which is purchased hereunder (hereinafter defined), irrespective of the date on which any such chose in action, cause of action, claim or right may arise or accrue;
(j) all but one share of the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferredcapital stock of ODM; and
2.1.13 (k) any and all other properties, assets, rights and businesses of Arrow’s other tangible every kind and intangible assets related nature owned or held by Seller on the Closing Date, known or unknown, fixed or unfixed, xxxxxx or inchoate, accrued, absolute, contingent or otherwise, whether or not specifically referred to the Businessin this Agreement.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Oryx Technology Corp), Asset Purchase Agreement (Oryx Technology Corp)
Purchase and Sale of Assets. Upon On and subject to the terms and conditions hereofof this Agreement (including Section 2.2), at the ClosingBuyer agrees to purchase from Seller, Arrow shall and Seller agrees to sell, transfer and assign to Acquisition Subassign, transfer, convey, and Acquisition Sub shall purchase deliver to Buyer free and acquire from Arrowclear of all Encumbrances (other than Permitted Encumbrances), all of Seller’s (and any Affiliate’s, if any) right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support all of the assets, rights, privileges, claims and properties of every kind, nature, character and description, real, personal and mixed, tangible and intangible, absolute or contingent, wherever located (to the extent that such assets, rights, privileges, claims and properties exist as of the Closing Date), which are used in or necessary for the operation of the Business in the Ordinary Course of Business, including the following assets (collectively, the “Dagger Acquired Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrancesincluding:
2.1.1 (a) All Seller Pipeline Loans existing as of the Closing and all contracts rights arising from or related thereto (including all Loan Documents, Loan Files, accounts receivable, lock fees, deposits, and other arrangements relating prepaid expenses related to the Business pursuant to which Arrow is providing goods and/or services, Seller Pipeline Loans);
(b) All Contracts listed in subsection (b) of Schedule 2.1 (the “Assumed Contracts”) and all proposalsrights thereunder;
(c) All tangible personal property (including furniture, bids fixtures and offers for future such contracts and arrangementsequipment) of Seller or any of its Affiliates, including the contracts and other arrangements, proposals, bids and offers listed assets identified on subsection (c) of Schedule 2.1.1 (the “Dagger Engagements”)2.1;
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all d) All of the leases, subleases, licenses intangible rights and property of Seller or other agreements for the use any of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process its Affiliates that relate to the Business (including all Business Intellectual Property) and all goodwill associated therewith and the going concern value and goodwill of the Business (collectively, the “Dagger Receivables” and Transferred Personal Property”), including the “Dagger Work-In-Process,” respectively)assets set forth on subsection (d) of Schedule 2.1;
2.1.10 all (e) Seller’s books, papersdata, ledgers, documents files and records relating to the Dagger Assetsoperation of the Business (but excluding corporate minute books and stock records of Seller and originals that Seller is required by law to retain in its possession, including and excluding all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papersdata, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents files and records relating to the Dagger Assets.Tax Returns) and all Confidential Information associated therewith;
2.1.11 (f) All of Seller’s rights with respect to strategic marketing agreements, title, escrow or appraisal joint ventures, partnerships or relationships which shall include, for the avoidance of doubt, all inventory of Seller’s Preferred Business Arrangements;
(g) All of Seller’s right, title and supplies interest in the Joint Venture, including all of the JV Interests and all Contracts, tangible and intangible properties and any other assets owned by Seller or any of its Affiliates used in the operation of the Joint Venture and not otherwise an Acquired Asset;
(h) All prepaid expenses and deposits of Seller (including the Security Deposits) except as set forth on Schedule 2.2;
(i) All of Seller’s or any of its Affiliates’ claims, causes of action, choses in action, rights of recovery and rights of set-off of any kind, against Third Parties, whether xxxxxx or inchoate, known or unknown, or contingent or noncontingent and whether or not liquidated, related to the Acquired Assets or arising out of the operation of the Business;
2.1.12 (j) All Benefit Plans, including all Permits documents and records of or relating thereto;
(k) All assets of all Benefit Plans (and all documents and records of or relating thereto, including all insurance policies pursuant to which benefits are provided under Benefit Plans);
(l) All refunds of Taxes relating to any period after the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferredClosing Date; and
2.1.13 all (m) All goodwill of Arrow’s other tangible and intangible assets related to Seller or any of its Affiliates associated with the operation of the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (loanDepot, Inc.)
Purchase and Sale of Assets. Upon On the terms and subject to the terms conditions set forth herein and conditions hereofexcept as provided in Section 2.7, at the Closing, Arrow Sellers shall sell, transfer convey, transfer, assign and assign deliver to Acquisition SubPurchaser, and Acquisition Sub Purchaser shall purchase from Sellers, free and acquire from Arrowclear of all “claims” (as defined in the Bankruptcy Code) and Liens, all of the right, title and interest of all Sellers in and to the assets utilized following assets, whether tangible or intangible, real, personal or mixed, except for the Excluded Assets (collectively, the “Purchased Assets”):
(a) all of Sellers’ Servicing Rights and rights to receive Servicing Fees with respect to the Xxxxxxxxxx-Related Assets on and after the Closing Date;
(b) all of Sellers’ Servicing Rights and rights to receive Servicing Fees with respect to the New Century Portfolio-Related Assets on and after the Closing Date;
(c) except for Contracts included in connection with the performance and technical and administrative support Excluded Assets, all (i) Contracts set forth in Schedule 2.1(c), (ii) Real Property Leases, (iii) Intellectual Property Licenses, (iv) subject to Section 2.6, rights under Separation Shared Contracts that relate primarily to the conduct of the Business, including (v) Transferred Shared Contracts, (vi) the following assets Assigned Leases and (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating vii) Contracts entered into or made by any Seller Related to the Business pursuant after April 2, 2007 and before the Closing; provided that, in the case of any such Contract referred to which Arrow is providing goods and/or servicesin this clause (vii), Sellers shall have furnished Purchaser a true, correct and complete copy of such Contract and, after a reasonable opportunity to review such Contract, Purchaser shall have consented in writing to assume such Contract (all proposalscontracts described in clauses (i) through (vii) of this Section 2.1(c), bids and offers for future such contracts and arrangementscollectively, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Assumed Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents which Consent shall not be unreasonably withheld or delayed;
(d) all Transferred Intellectual Property;
(e) all Books and Records Related to the assignment of such Dagger ContractsBusiness that are not Excluded Assets;
2.1.4 (f) all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments Fixtures and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate Equipment Related to the Business;
2.1.8 (g) all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded IT Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related Related to the Business;
2.1.12 (h) the Leased Real Property, including all easements and other rights and interests appurtenant thereto;
(i) all Advances;
(j) all credits, prepaid expenses, deferred charges, security deposits, prepaid items and duties to the extent primarily related to a Servicing Agreement or a Purchased Asset;
(k) all causes of action, lawsuits, judgments, claims, refunds, choses in action, rights of recovery, rights of set-off, rights of recoupment, demands and any other rights or Claims of any nature available to or being pursued by Sellers or any of their Affiliates to the extent primarily related to the Purchased Assets and arising or accruing from and after the Closing or to the extent primarily related to the Assumed Liabilities, whether arising by way of counterclaim or otherwise (“Assumed Rights and Claims”);
(l) all guaranties, warranties, indemnities and similar rights in favor of Sellers or any of their Affiliates to the extent related to any Servicing Agreement or Purchased Asset, other than any guaranties, warranties, indemnities and similar rights in favor of Sellers or any of their Affiliates arising prior to the Closing Date; and
(m) to the extent permitted by Law, all Permits relating held by Sellers Related to the Business or any of the Dagger FacilitiesPurchased Assets, including the permits those listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”2.1(m).
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (New Century Financial Corp)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofset forth herein, at the Closing, Arrow (i) Seller shall sell, transfer assign, transfer, convey and assign deliver to Acquisition SubBuyer, and Acquisition Sub Buyer shall purchase from Seller free and acquire from Arrowclear of all Liens (other than the Permitted Liens), all of Seller's right, title and interest in in, to and under the Target Equity of China SNS Group Limited and Fanstang (Shanghai) Entertainment Information Consulting Co. Ltd.; (ii) Seller shall sell, assign, transfer, convey and deliver to the assets utilized in connection with the performance Parent, and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case Parent shall purchase from Seller free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, Liens (other than thosethe Permitted Liens), all of Seller's right, title and interest in, to and under the Target Equity of RAAD Productions, LLC; and (iii) Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase from Seller (but not have any duties or obligations with respect thereto without the express assumption thereof by the Buyer in its sole discretion), all of such right, title and interest in, to and under the other assets of the Seller that the Seller has at the date of the Closing (other than Seller’s rights under this Agreement and the Distribution Agreement), if any, which constitute Excluded Assets under Section 2.2) including but not limited to the following (provided, however, that exist as such assets shall not include intercompany accounts receivable in favor of the ClosingSeller):
(a) all accounts receivable;
2.1.6 (b) all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual tangible personal property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all equipment, materials, prototypes, tools, supplies, vehicles, furniture, fixtures, machinery, office improvements and other equipment and leasehold improvements relating to the Business and all other tangible assets of the Seller;
(c) all Intellectual Property (as materially listed on Schedule 2.1.8 defined below) of the Seller and rights with respect to Intellectual Property of the Seller;
(d) all rights and benefits of the “Dagger Tangible Assets”Seller under Contracts (other than this Agreement and the Distribution Agreement), including without limitation the Material Contracts;
(e) all rights and benefits of the Seller under Licenses (as defined below);
2.1.9 (f) all claims and causes of Arrow’s accounts receivable action of the Seller against other Persons (regardless of whether or not such claims and unbilled accounts receivable and work-in-process that relate to causes of action have been asserted by the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and recordsSeller), as well as complete copies and all rights of all indemnity, warranty rights, rights of contribution, rights to refunds, rights of reimbursement and other books, papers, ledgers, documents and records relating to rights of recovery possessed by the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferredSeller (regardless of whether such rights are currently exercisable); and
2.1.13 all (g) any goodwill associated with any of Arrow’s other tangible and intangible assets related to the Businessforegoing.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 2 contracts
Samples: Asset and Securities Purchase Agreement (Remark Media, Inc.), Asset and Securities Purchase Agreement (Remark Media, Inc.)
Purchase and Sale of Assets. (a) Upon the terms and subject to the terms and conditions hereofof this Agreement, at the Closing, Arrow the Seller shall sell, transfer assign, transfer, convey and assign deliver, or shall cause to Acquisition Subbe sold, assigned, transferred, conveyed and delivered, to the Purchaser, and Acquisition Sub the Purchaser shall purchase and acquire from Arrowthe Seller, all of the Seller’s right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support of the Business, including only the following assets and no other assets of the Seller (the assets to be purchased by the Purchaser being referred to as the “Dagger Purchased Assets”):
(i) the Contracts of the Seller set forth or described in Schedule 2.1(a)(i), in each case free and clear (including, for the avoidance of all Security Interestsdoubt, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business any IP Agreements thereon) plus or minus any Contract added or removed pursuant to which Arrow is providing goods and/or servicesSection 5.8 or Section 5.9 (collectively, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Transferred Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete any work not yet started and remaining work in progress under the Transferred Contracts with respect to services to be performed by Purchaser subsequent to the Closing Date;
(ii) the Permits listed in Section 2.1(a)(ii) of the Disclosure Schedule;
(iii) originals or copies of all other books, papers, ledgers, documents books and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilitiesrecords, including the permits listed on Schedule 2.1.12books of accounts, ledgers and general, financial and accounting records, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority), sales material and records, strategic plans, internal financial statements and marketing and promotional surveys, material and research, in each case, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries Purchased Assets (collectively, the “Dagger Subsidiary SharesTransferred Records”); provided that the Seller may have redacted any information from such Transferred Records not related to the Transferred Contracts prior to the delivery of such Transferred Records to the Purchaser and may retain originals or a copy of any Transferred Records relating to the Seller’s remaining business operations or tax, accounting or legal matters or otherwise required to be retained pursuant to applicable Law or Seller’s bona fide data retention policies;
(iv) all client relationships solely to the extent exclusively related to the Purchased Assets and the Assumed Liabilities (it being understood that under no circumstances will this Section 2.1(a)(iv) limit in any respect any Seller relationships, whether existing or prospective, with such clients or any other client, potential client or other third party related to matters other than the Transferred Contracts);
(v) the In-Scope Employee Records;
(vi) all Intellectual Property (A) that (1) the ownership of which was transferred to Seller or any of its Affiliates pursuant to the transactions contemplated by the Transaction Agreement and (2) was exclusively used or exclusively held for use by Purchaser, any of the Purchaser’s Affiliates or any predecessors-in-interest to the Seller that were parties to the Transaction Agreement, in each case, in connection with the Purchased Assets (other than this (vi)) at the time of such transfer, (B) exclusively used or exclusively held for use by the Seller in connection with the Purchased Assets (other than this (vi)) and (C) created or developed in connection with performing under the Transferred Contracts (“Transferred Intellectual Property”);
(vii) all of Seller’s rights under warranties, indemnities and all similar rights against third parties (“Third-Party Warranty Rights”) to the extent arising out of the Purchased Assets, except to the extent of such Third-Party Warranty Rights related to a Transferred Contract under which Seller remains responsible for any Liability on or after the Closing, and provided that in no event shall Seller be responsible under this Agreement for any costs or expenses incurred by Purchaser in order to exercise any Third-Party Warranty Rights; and
(viii) copies of all Tax Returns relating solely to the Purchased Assets.
(b) Notwithstanding anything in this Agreement to the contrary, the Seller shall not sell, convey, assign, transfer or deliver to the Purchaser, and the Purchaser shall not purchase, and the Purchased Assets shall not include any right, title and interest in or to any other assets, property, rights, goodwill or business of the Seller whatsoever other than as described in Section 2.1(a), including any rights to Tax refunds or credits with respect to Excluded Taxes (the “Excluded Assets”).
(c) Notwithstanding any other provision to the contrary, this Agreement shall not constitute an agreement to sell, convey, transfer, novate or assign any Purchased Asset if such action requires the prior approval, notification and/or consultation with any union, works council or other employee representative, unless such approval is obtained or such notification and/or consultation has been completed.
Appears in 2 contracts
Samples: Asset Purchase Agreement (BAKER HUGHES a GE Co LLC), Asset Purchase Agreement (Baker Hughes a GE Co)
Purchase and Sale of Assets. Upon the terms and subject to the terms conditions of this Agreement and conditions hereofin reliance upon the representations and warranties contained herein, at on the ClosingClosing Date, Arrow the Seller shall sell, transfer transfer, assign, convey and assign deliver to Acquisition Subthe Buyer, and Acquisition Sub the Buyer shall purchase from the Seller, free and acquire from Arrowclear of all liens, claims, charges, encumbrances and security interests of any kind and subject to the exclusions set forth in Section 1.2, all of the assets of Seller which shall include, without limitation:
(a) title to all of the property used or held for use in the Business, including without limitation, all furniture, fixtures, computers, office equipment and miscellaneous assets of every kind and nature owned by Seller or used in or necessary for the operation of the Business, including but not limited to, those assets set forth in Schedule 1.1(a) attached hereto (collectively, the “Fixed Assets”);
(b) all right, title and interest of Seller in and to all contracts (expressly including unfilled contracts for services), agreements, leases, commitments, arrangements or understandings, written or oral, pertaining to the assets utilized operation of the Business specifically identified on Schedule 1.1(b);
(c) all of Seller’s right, title and interests in connection with and to all of the performance following (collectively, the “Intellectual Property”): patents and patent rights, trademarks and trademark rights (whether registered or not), including any goodwill therein, trade names and trade name rights, domain names, service marks and service xxxx rights, service names and service name rights, brand names, inventions, processes, formulae, copyrights and copyright rights (whether registered or not), trade dress, business and product names, telephone numbers, logos, slogans, trade secrets, industrial models, processes, designs, methodologies, computer programs, software (whether in source or object code) and related documentation, the “A-Dex System” internet data-mining software (whether in source or object code) and related documentation, technical information, manufacturing, engineering and technical drawings, know-how and administrative support all pending applications for and registrations of patents, trademarks, service marks and copyrights; the Businessforegoing shall include, without limitation, all software under development owned by the Seller and listed on Schedule 1.1(c) (including the following assets (the “Dagger Assets”)software development schedule included therein) and all licenses, in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts agreements and other arrangements relating under which the Seller has the right to use any of the intangible or proprietary rights of a third party to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers extent used or held for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described Seller in the Ancillary Agreement relating to intellectual property, the form conduct of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 (d) all lists of Arrow’s tangible assets primarily present customers and lists of former customers and other customer-related records of the Business;
(e) all goodwill associated with the Business or the Purchased Assets;
(f) all books, files and records of the Seller (including, without limitation, all surveys, schematics, flow charts, permit filings, mailing lists, customer lists, equipment maintenance records, warranty information, records of operations, payroll history, standard forms of documents, manuals of operation or business procedures, training manuals and training aids and other proprietary or confidential information to the extent the same may be necessary or desirable for the operation of the Business) relating to the Business (other than those tangible assetsminutes of corporate meetings, if anycapital stock ledger and purely corporate records which Buyer may agree are not necessary or advisable to the conduct of the Business; provided, which constitute Excluded Assets under however, that, on or prior to the Closing Date, Seller shall provide to Buyer copies of all such corporate records) (the materials described in this Section 2.21.1(f), including all furniturecollectively, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible AssetsBusiness Records”);
2.1.9 (g) all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate the governmental permits, licenses, certificates of inspection, approvals or other authorizations issued to the Business Seller and used in the Business, except Seller’s Medicare provider number (collectively the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations Governmental Permits”) (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12Seller agreeing, to the extent the same any such permits are not assignable or transferable to Buyer, Seller will use its best efforts to cooperate with Buyer as may be transferredreasonably requested to enable Buyer to apply for and obtain the Governmental Permits);
(h) all rights of Seller relating to deposits and prepaid expenses; and
2.1.13 (i) except as specifically provided in Section 1.2, all other assets of Arrow’s other Seller that exist on the Closing Date, whether tangible and intangible assets related to the Businessor intangible, real or personal.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Certified Diabetic Services Inc)
Purchase and Sale of Assets. Upon and subject (a) Subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Closing Seller shall sell, transfer assign, transfer, convey and assign deliver to Acquisition Subthe appropriate Buyer, and Acquisition Sub such Buyer shall purchase and acquire from ArrowSeller, free and clear of any mortgage, pledge, lien, charge, security interest, claim or other encumbrance (each being an “Encumbrance”), all of Seller’s right, title and interest in and to all of the assets, properties, and rights (including goodwill), wherever located, described below (collectively, the “Purchased Assets”):
(i) the assets utilized in connection with the performance and technical and administrative support set forth on Section 1.01 of the Business, including the following assets schedules attached to this Agreement (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger EngagementsDisclosure Schedules”);
2.1.2 (ii) all of Seller’s contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services agreements relating to the BusinessSeller Businesses or the Purchased Assets, excluding including the contracts and other arrangements listed Assigned Contracts set forth on Schedule 2.1.2 (Section 3.07 of the “Dagger Completed Engagements”)Disclosure Schedule;
2.1.3 (iii) all other contracts of Seller’s Permits (as defined below) relating to the Business and Seller Businesses or the Purchased Assets, to which Arrow is a partythe extent transferable or assignable to the Buyer, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding Assigned Permits set forth on Section 3.08 of the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger ContractsDisclosure Schedule;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 iv) all prepaid expenses, deposits, advances, other prepayments expenses and related rights paid or obtained by Arrow deposits of Seller relating to the BusinessPurchased Assets or the Seller Businesses, (other than those, if any, which constitute Excluded Assets under subject to Section 2.2) that exist as of the Closing5.09;
2.1.6 (v) all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual propertyinventory, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training raw materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable finished goods and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records progress relating to the Dagger Seller Businesses or the Purchased Assets;
(vi) all data, records and information relating to the Purchased Assets or the Seller Businesses, including without limitation financial records and information and data relating to technical support or operations of the Seller Businesses;
(vii) all technical information, data, customer lists, supplier lists, price lists, process technology, plans and drawings, and all other Intellectual Property (as defined below) relating to the Seller Businesses or the Purchased Assets, including without limitation Seller’s trade secrets relating to its Citrus Emulsion System and its Citrus Peel Processing System, but excluding any right to use the name “Acacia” or its trademarks, trade names, or logos using the name “Acacia”; and
(viii) all records and documents claims under warranties, indemnities or other claims or rights against third parties relating to the Dagger EngagementsPurchased Assets or the Seller Businesses, and all insurance benefits and proceeds arising out of the Dagger Contracts, Purchased Assets or the Dagger Receivables, Seller Businesses after the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger AssetsClosing.
2.1.11 all inventory and supplies related to (b) CEL shall acquire at the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 Closing all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in Purchased Assets except for the Dagger Subsidiaries following which shall be acquired by CETS (collectively, the “Dagger Subsidiary SharesCETS Assets”): (a) the Purchased Assets specifically described on Section 1.01 of the Disclosure Schedule as being transferred to CETS, (b) the Assigned Contracts specifically designated as being acquired by CETS on Section 3.07 of the Disclosure Schedule (the “CETS Contracts”), and (c) the Assigned Permits specifically designated as being acquired by CETS on Section 3.08 of the Disclosure Schedule (the “CETS Permits”).
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Acacia Diversified Holdings, Inc.)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofset forth below, at the ClosingSeller agrees to assign, Arrow shall sell, sell and transfer and assign to Acquisition SubBuyer, and Acquisition Sub shall Buyer agrees to purchase and acquire from ArrowSeller, all rightof Seller’s rights, title and interest in and to the assets utilized in connection with 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 performance and technical and administrative support of Station as the Businesssame shall exist on the Closing Date (as defined herein) (collectively, including the following assets (the “Dagger Station Assets”), in each case . Seller agrees that the Station Assets on the Closing Date shall be free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, any and all proposalsliens, bids claims, petitions, charges and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 encumbrances of any nature whatsoever (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger ContractsLiens”), but excluding and shall include:
(a) the Dagger Leases, regardless of whether Arrow has obtained Licenses and any necessary consents and all other FCC authorizations pertaining to the assignment of such Dagger ContractsStation set forth on Schedule 1(a) hereto;
2.1.4 (b) any and all pending applications before the FCC which relate solely to the Station;
(c) all books and records relating solely to the Station;
(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 Station;
(e) all of the Seller’s land, leases, land purchase contracts, tower registrations, tower permits relating solely to the Station, including but not limited to all rights, title and interest under the leases, subleases, licenses licenses, occupancy agreements or other agreements for contracts relating solely to the use of physical locations listed Station, as set forth on Schedule 2.1.4 1(e) hereto (collectively the “Dagger LeasesReal Property”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2f) that exist as of the Closing;
2.1.6 all of the rights in or Seller’s right, title and interests under existing agreements, contracts, commitments, leases relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate solely to the Business;
2.1.8 all operation of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets Station as materially listed more fully described on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred1(f) hereto; and
2.1.13 (g) all of Arrowthe Seller’s supplies, equipment, inventories and other tangible property purchased but not installed, as and intangible assets related relating solely to the Business.
2.1.14 all operation of Arrow’s capital stock the Station, as set forth on Schedule 1(g) hereto. In connection with the purchase of Station Assets, Buyer shall assume and other voting interests agree to pay, perform and discharge when due the following obligations arising in connection with the Dagger Subsidiaries Station Assets and operation of the business, as the same shall exist on the Closing Date (collectively, the “Dagger Subsidiary SharesAssumed 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.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Equity Media Holdings CORP), Asset Purchase Agreement (Equity Media Holdings CORP)
Purchase and Sale of Assets. Upon On the terms and subject to the terms and conditions set forth in this Agreement, on the Closing Date (as defined in Section 4.01 hereof), at the Closing, Arrow shall sell, transfer and assign Seller agrees to Acquisition Subsell to Purchaser, and Acquisition Sub shall Purchaser agrees to purchase from Seller, the following assets owned by Seller and acquire from Arrow, all right, title and interest used in and or pertaining to the assets utilized in connection with the performance and technical and administrative support of the Business, including wherever located, as the following same shall exist as of the Closing Date (collectively, the "Acquired Assets"):
(a) All accounts receivable (collectively, "Receivables");
(b) All inventories (wherever located) whether or not charged off or expensed in whole or in part, including, without limitation, all supplies, parts and finished goods (collectively, "Inventories");
(c) All fixed assets and tangible personal property including, without limitation, equipment, machinery, vehicles, tools, dies, furniture, furnishings, office equipment, leasehold improvements, fixtures and all similar assets or properties used in the Business of Seller whether or not charged off or expensed in whole or in part (the “Dagger collectively, "Fixed Assets”"), in each case free together with all manufacturers' or vendors' warranties and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all service contracts and other arrangements relating to the Business pursuant to which Arrow is providing Fixed Assets;
(d) All rights in and under all open orders as of the Closing Date for goods and/or servicesservices accepted by Seller in the ordinary course of business, consistent with past practice, that Purchaser determines to assume at Closing (if any) ("Orders");
(e) All customer deposits, prepaid supplies and all proposals, bids other prepaid expenses relating to Orders or Contracts (as hereinafter defined);
(f) All rights in and offers for future such contracts and arrangements, including under the contracts and other arrangements, proposals, bids written commitments and offers agreements of Seller listed on Schedule 2.1.1 1.01(f) hereto (the “Dagger Engagements”if any) ("Contracts");
2.1.2 (g) All sales records and sales promotional data, customer lists and records, cost and pricing information, and all contracts good will of the Business of Seller;
(h) All intellectual property used in the Business of Seller, including, without limitation, any and other arrangements pursuant to which Arrow formerly provided goods and/or services relating all inventions, patent rights, trade secrets, know-how, trademarks, service marks and trade names and the good will associated therewith, and applications with respect to the Businessforegoing, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a partyincluding, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual propertywithout limitation, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” trade name "Auto Conversions" and the “Dagger Work-In-Process,” respectivelycorporate name "Auto Conversions Inc." (collectively, "Intangible Rights");
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible (i) All telephone numbers, websites and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests e-mail addresses used in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”)Business of Seller.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ideal Accents Inc), Asset Purchase Agreement (Ideal Accents Inc)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Seller shall, or where applicable shall cause its applicable Affiliates to, sell, transfer assign, transfer, convey and assign deliver to Acquisition SubBuyer, and Acquisition Sub Buyer shall purchase from Seller and acquire from Arrowsuch Affiliates, in each case, free of all Encumbrances (other than Permitted Encumbrances), all of Seller’s and its applicable Affiliates’ right, title and interest in in, to and under the following assets, properties and rights of Seller and such applicable Affiliates, as the same shall exist as of the Closing Date (collectively, the Purchased Assets):
(a) all Contracts that exclusively relate to the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets (Contracts set forth on Section 2.01(a) of the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or servicesSeller Disclosure Schedules, and all proposalsthe Leases (collectively, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”Assigned Contracts);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2b) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machineryequipment, office supplies, machinery and other equipment and leasehold improvements relating tangible personal property to the extent used, or held for use, exclusively in the Business (the Tangible Personal Property);
(c) all Leased Real Property;
(d) all of Seller’s and its Affiliates’ rights under warranties, indemnities, Encumbrances and all similar rights against third parties to the extent related, any other Purchased Assets or any Assumed Liabilities;
(e) all prepaid expenses, credits, advance payments, security, deposits, charges, sums and fees exclusively related to any Purchased Assets or any Assumed Liabilities;
(f) copies of all books and records, including books of account, ledgers and general, financial and accounting records, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, sales material and records and marketing and promotional surveys, material and research and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that similar materials that, in each case, exclusively relate to the Business (the “Dagger Receivables” Books and the “Dagger Work-In-Process,” respectivelyRecords);
2.1.10 (g) all booksPermits set forth on Section 2.01(g) of the Seller Disclosure Schedules and any other Permits held by the Seller or its Affiliates that exclusively relate to the Business, papersany Purchased Assets or any Assumed Liabilities;
(h) all rights, ledgersclaims, documents and records credits, or causes of action or rights of setoff against third parties, in each case, exclusively relating to any Purchased Assets or any Assumed Liabilities and, in each case, arising after the Dagger AssetsClosing;
(i) any insurance proceeds that are actually received from third-party insurance providers arising out of any Loss or casualty with respect to (A) any asset that will be or would be, including all records and documents relating if held by Seller or its Affiliates on the Closing Date, a Purchased Asset or (B) any Assumed Liability;
(j) to the Dagger Engagementsextent legally transferrable, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other bookspersonnel, papers, ledgers, documents employee compensation and benefits records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, files to the extent relating to Transferred Employees;
(k) the same may be transferredInventory;
(l) all Universal Product Codes for the products of the Business; and
2.1.13 (m) to the extent not otherwise described in clauses (a) through (l) above, all other assets of Arrow’s the Seller and its Affiliates (other tangible and intangible assets related than the Excluded Assets) to the extent used exclusively in or held for use exclusively in the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 2 contracts
Samples: Transaction Agreement, Transaction Agreement (Starbucks Corp)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereof, including the assumption by Buyer of the Liabilities, at the Closing, Arrow shall Seller will grant, sell, convey, assign, transfer and assign deliver to Acquisition SubBuyer, and Acquisition Sub shall purchase Buyer will buy, accept and acquire receive from ArrowSeller, all of Seller’s right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support of the Businessinterest, including the following assets (the “Dagger Assets”), in each case free and clear of all Security InterestsLiens (excluding Permitted Liens), except Permitted Encumbrancesas of the Closing Date, in and to the following assets:
2.1.1 all contracts (a) The real estate owned in fee by the Seller and buildings or other arrangements relating to improvements thereon that are used for the Business pursuant to which Arrow is providing goods and/or services, Branches and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on described in Schedule 2.1.1 1 (the “Dagger EngagementsPremises”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to (b) All of the Businesspersonal property of Seller located in the Branches consisting of the furniture, excluding the contracts and other arrangements listed on Schedule 2.1.2 trade fixtures, equipment, shelving, on-premises ATMs, security systems, safe deposit boxes (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a partyincluding keys, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”but exclusive of contents), vaults, telephone numbers, sign structures (exclusive of signage containing any trade name, trademark or service mxxx, if any of Seller), supplies (excluding any items consumed or disposed of, but excluding including new items acquired or obtained, in the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all ordinary course of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as operation of the Closing;
2.1.6 all of Branches through the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries Closing Date) (collectively, the “Dagger Subsidiary SharesPersonal Property”). The Personal Property is set forth in Schedule 2 and shall be updated as of the Closing Date;
(c) All vault and teller cash, pxxxx cash, on-premises ATM cash, coin on hand and cash equivalents held at the Branches (collectively, the “Cash on Hand”);
(d) The security deposits on the Branch Leases (“Premises Security Deposits”);
(e) Prepaid expenses, including rents and utilities, as set forth on Schedule 3, which Schedule 3 shall be updated as of the Closing Date (the “Prepaid Expenses”);
(f) The Loans, including Accrued Interest, the collateral for the Loans, the Loan Files and Loan Documents and all servicing rights related to such Loans pursuant to Section 15(b);
(g) The Branch Leases, Personal Property leases, licenses, contracts and other agreements identified on Schedule 5 that relate to the Branches (“Assigned Contracts”);
(h) The Safe Deposit Agreements;
(i) the Records;
(j) The rights of action and claims related to the Assets, except to the extent exclusively relating to Excluded Liabilities; and
(k) The Additional Assets (as defined below), if any. The foregoing assets in (a) through (k) will be referred to collectively as the “Assets.” No later than two (2) Business Days prior to the Closing Date, Seller may agree to grant, sell, convey, assign, transfer and deliver to Buyer, and Buyer may agree to purchase and accept from Seller, such additional assets of Seller (“Additional Assets”) as the parties may mutually agree, on such terms and conditions (including, without limitation, the valuation thereof and appropriate representations and warranties with respect thereto) as may be mutually agreed upon by the parties and set forth on Schedule 6. Such additional consideration for any Additional Assets will be added to the Purchase Price. Seller will not grant, sell, assign, transfer or encumber and Buyer will not purchase any assets of Seller other than the Assets. Through the period ending twenty-eight (28) calendar days following the execution of this Agreement (the “Loan Review Period”), Buyer shall have reasonable access pursuant to Section 16(l) and may review all Loans to identify in writing to Seller (1) any and all loans that were improperly or mistakenly classified as Loans as of the date of this Agreement due to their inclusion on Schedule 4(a)(i), and (2) any and all Loans that as of the date of the execution of this Agreement would entitle Buyer to indemnification (for purposes of this determination, ignoring the limitations on indemnification set forth in Section 20(e)) for Losses resulting from a breach of any of the representations or warranties set forth in Section 9(f) (for purposes of this determination, any such representation or warranty that is qualified by Material Adverse Effect, materiality or similar qualifier shall be read and given effect as if no such qualifier is contained therein) ((1) and (2) collectively, the “Excluded Loans”). Seller shall have twenty-one (21) calendar days following the end of the Loan Review Period to cure any such breaches, if any, capable of cure identified in such notice provided by Buyer pursuant to (2) above (and in the event Seller cures any such breaches, the Loan(s) associated with such breach(s) shall not be deemed “Excluded Loans”). Following the end of such 21-day period, Seller shall make adjustments to Schedule 4(a)(i) to remove the Excluded Loans therefrom, and make corresponding adjustments to the Purchase Price.
Appears in 2 contracts
Samples: Purchase and Assumption Agreement (First Financial Bancorp /Oh/), Purchase and Assumption Agreement (Peoples Community Bancorp Inc /Md/)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofof this Agreement, at the Closing, Arrow Seller shall sell, transfer and assign sell to Acquisition SubBuyer, and Acquisition Sub Buyer shall purchase and acquire from ArrowSeller, all right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets (collectively, the “Dagger Purchased Assets”), as the same shall exist on the Closing Date free and clear of all Encumbrances other than Permitted Encumbrances (and, in the case of Real Property, the Real Property Permitted Encumbrances):
(a) without limitation, Seller’s real property located within the FERC Boundary, the other real property described in Schedule 2.01(a)(A), and, as and to the extent agreed by Buyer, Seller and Mill Owner in accordance with Section 5.06 hereof, (i) sufficient real property easement rights in Mill Owner’s real property located within the FERC Boundary that are necessary to operate the Project, (ii) such other real estate rights necessary for Buyer to construct the third penstock in the vicinity of the two existing penstocks near the Lower Station (as depicted in the FERC License), and (iii) such easements or other rights necessary for the delivery by Buyer of electrical energy and ancillary products from the Project to the ISO-NE for sale into NEPOOL in accordance with good operating practices, in compliance with Laws and Seller’s Permits (except as otherwise contemplated by this Agreement) and Environmental Permits, as more particularly described in Schedule 2.01(a) (collectively, the “Real Property to be Conveyed”), but excluding therefrom, without limitation, the real property and related rights set forth under the heading of “Retained Real Property Rights” on Schedule 2.01(a)(B) and other real property and related rights agreed to by the parties in accordance with Section 5.06 or not expressly agreed to be sold or conveyed to Buyer (collectively, the “Retained Real Property Rights”);
(b) the machinery, equipment, tools, furniture, furnishings and other fixed assets listed on Schedule 2.01(b) (collectively, the “Equipment”);
(c) the inventory of supplies, stores, parts and materials used in the operation of the Project and located on the Real Property on the Closing Date;
(d) all of Seller’s rights under the contracts, agreements, purchase orders, understandings, and arrangements set forth on Schedule 2.01(d) (collectively, the “Assumed Agreements”);
(e) all of Seller’s rights in, to and under the Permits and Environmental Permits that are listed on Schedule 2.01(e), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant extent assignable; and
(f) all of Seller’s documents and records with respect to the ownership and operation of the Project (including, without limitation, (i) with respect to the Real Property, the Equipment, the Assumed Agreements, the Permits and the Environmental Permits; (ii) as required by and pertaining to the FERC License; and (iii) cost reports including property tax assessments for the last three years) (collectively, the “Records”), subject to Seller’s right to retain copies of any such Records; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the term “Purchased Assets” shall not include any of the following assets of Seller or any assets not described above (which Arrow shall be retained by Seller and hereinafter are referred to as the “Excluded Assets”):
(i) cash and cash equivalents and bank accounts;
(ii) any real property of Seller not described on Schedule 2.01(a) as “Real Property to be Conveyed”, the Retained Real Property Rights and any personal property of Seller not listed on Schedule 2.01(b);
(iii) subject to Section 2.01(d) and Section 2.05, any receivables or other rights to receive payments (with the exception of insurance proceeds resulting from the destruction of any Purchased Asset required to be conveyed under Section 2.01 which Purchased Asset is providing goods and/or servicesnot replaced prior to the Closing, which proceeds shall be paid to Buyer at or after the Closing, as the case may be);
(iv) all financial statements, tax returns and official corporate records, including the corporate minute books and stock ledgers;
(v) all (A) “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended), (B) employment, consulting, non-competition, non-solicitation or other compensation agreements, and all proposalscollective bargaining agreements, bids and offers for future such contracts and (C) bonus or other incentive compensation, equity or equity based compensation, stock purchase, deferred compensation, change in control, severance, leave of absence, vacation, salary continuation, medical, life insurance, section 125 cafeteria, dependant care, pension or welfare benefit plans, policies, agreements or arrangements, including in each case as to which the contracts and other arrangementsSeller has any liability, proposalscontingent or otherwise, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”)thereunder for current or former employees, directors or individual consultants of Seller;
2.1.2 all contracts and (vi) Seller’s shares in Androscoggin Reservoir Company, a Maine corporation; and
(vii) the other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”2.01(vii).
Appears in 2 contracts
Samples: Asset Purchase Agreement (NewPage Holding CORP), Asset Purchase Agreement (NewPage CORP)
Purchase and Sale of Assets. Upon Based upon the representations and warranties of Adeptus as set forth herein, and subject to the terms and conditions hereof, at each Applicable Closing relating to a New Development Project, the Closing, Arrow applicable MPT Lessor shall sell, transfer and assign to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arrowthe Unrelated Seller, free and clear of all Liens other than the Permitted Exceptions, the following assets (collectively, the "Assets"):
(a) the applicable Real Property;
(b) to the extent assignable, all rights in all intangible property relating exclusively to such Real Property, including, but not limited to, zoning rights, Permits and indemnification or similar rights and all Warranties affecting or inuring to the benefit of such Real Property or the owner thereof (including, without limitation, any indemnification or similar rights and Warranties related to such Real Property);
(c) all right, title and interest in and to any site plans, surveys, soil and substrata studies, architectural drawings, plans and specifications, inspection reports, engineering and environmental plans and studies, title reports, floor plans, landscape plans and other plans relating to such Real Property; and
(d) all right, title and interest in and to all causes of action, claims and rights in litigation (or which could result in litigation against any party) pertaining or relating to such Real Property (including, without limitation, any causes of action, claims or rights in litigation or other rights related to or arising under any purchase contracts respecting the assets utilized Real Property). The parties acknowledge and agree that, in connection with each Applicable Closing, the performance Adeptus Buyer shall assign to the MPT Lessor the right to acquire the Real Property subject to the applicable Real Estate Contract from the Unrelated Seller (and technical MPT Lessor shall assume no other obligations thereunder) (each, a "Partial Assignment"), and administrative support such MPT Lessor shall acquire the Real Property from such Unrelated Seller subject to the terms and conditions of the Businessapplicable Real Estate Contract. Alternatively, including upon the following assets mutual agreement of the parties, the Adeptus Buyer shall acquire the Real Property from the applicable Unrelated Seller and then convey such Real Property and the other Assets to the applicable MPT Lessor (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”"Direct Sale Alternative").
Appears in 2 contracts
Samples: Master Funding and Development Agreement (Adeptus Health Inc.), Master Funding and Development Agreement (Adeptus Health Inc.)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Sellers shall, or shall cause their respective Subsidiaries to, sell, transfer assign, transfer, convey and assign deliver to Acquisition SubBuyer, and Acquisition Sub Buyer shall purchase from Sellers or their respective Subsidiaries, free and acquire from Arrowclear of all Encumbrances other than Permitted Encumbrances, all of Sellers’ or their respective Subsidiaries, as applicable, right, title and interest in in, to and under the following assets, properties and rights of Sellers or the respective Subsidiaries (provided, that any Transferred Assets that are owned by the Purchased Subsidiary shall not be separately sold, but rather shall transfer to Buyer indirectly via the sale of the Purchased Interests), as applicable, to the assets utilized in connection with the performance extent that such assets, properties and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the ClosingClosing Date (collectively, the “Transferred Assets”):
(a) the Current Assets as of 12:01 a.m. Eastern Time on the Closing Date;
2.1.6 (b) all of Transferred Contracts;
(c) all Transferred Intellectual Property, including the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A patents set forth on Schedule 2.02(c)(i) (the “Intellectual Property AgreementTransferred Patents”) and the proprietary Software set forth on Schedule 2.02(c)(ii);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including d) all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating supplies either located at the Subleased Property or offsite for purposes of remote working practices by the Business Employees and in each case primarily related to the Business and all owned by Sellers, including, such furniture, fixtures, equipment, supplies and other tangible assets as materially personal property listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries 2.02(d) (collectively, the “Dagger Subsidiary SharesTangible Personal Property”);
(e) all purchase orders or other commitments exclusively related to the Business that remain unfulfilled as of the Closing, other than as expressly included in the Excluded Assets;
(f) to the extent transferable under applicable Law, all Permits (and all applications therefor) used exclusively in, or obtained exclusively for, the operation of the Business;
(g) to the extent transferrable under applicable Law, in whole or in part, all rights to all causes of action, Proceedings, judgments or defenses against third parties and demands of any nature arising on or after the Closing Date, whether arising by way of counterclaim or otherwise, in each case to the extent (and only to the extent) exclusively related to the Business, any Transferred Asset or Assumed Liability, except for claims or refunds for any Taxes that constitute Assumed Liabilities;
(h) all rights, claims and credits (including all guaranties, warranties, indemnities and similar rights) of Sellers or any of their respective controlled Affiliates to the extent (and only to the extent) related exclusively to the Business, any Transferred Asset or Assumed Liability;
(i) the Transferred Records;
(j) all personnel Records to the extent (and only to the extent) pertaining exclusively to the Transferred Employees, to the extent permitted by applicable Law (provided that Sellers shall be permitted to keep a copy of all such personnel Records); and
(k) all goodwill of Sellers associated with, or attributable to, the Business, and the going concern value of the Business.
Appears in 2 contracts
Samples: Purchase Agreement (American Virtual Cloud Technologies, Inc.), Purchase Agreement (Ribbon Communications Inc.)
Purchase and Sale of Assets. (a) Upon the terms and subject to the terms and conditions hereofof this Agreement, at the Closing, Arrow the Seller shall sell, transfer assign, transfer, convey and assign deliver, or cause to Acquisition Subbe sold, assigned, transferred, conveyed and delivered, to the Purchaser, and Acquisition Sub the Purchaser shall purchase and acquire from Arrowthe Seller, all assets and rights of the Seller that are used in or held for use in the Business as a going concern (the “Purchased Assets”), free and clear of all Liens, except Permitted Encumbrances other than Mechanic’s Liens, including:
(i) the Owned Real Property and all of the Seller’s right, title and interest in and to the assets utilized Leased Real Property;
(ii) the Timber Tenures;
(iii) all tangible personal property owned by the Seller and used primarily in connection with the performance and technical and administrative support conduct of the Business, including equipment, machinery, trucks, cars, other vehicles, rolling stock and marine vessels;
(iv) the Inventories;
(v) the books of account, general, financial, Tax (other than income tax) and personnel records, invoices, shipping records, supplier lists, correspondence and other documents, records and files and any rights thereto owned, solely associated with or solely employed by the Seller in the conduct of the Business;
(vi) the goodwill of the Seller to the extent relating to the Business;
(vii) all of the Seller’s right, title and interest in and to the Assigned Contracts (to the extent that such Contracts are transferable);
(viii) all of the Seller’s right, title and interest in and to the municipal, provincial and federal franchises, permits, licenses, agreements, waivers and authorizations, including Environmental Permits, held or used by the Seller solely in connection with the Business (collectively, the “Permits and Licenses”);
(ix) the sales and promotional literature, customer lists and other sales-related materials of the Seller related to the Business; and
(x) subject to the provisions of Section 2.01(b), all of the Seller’s right, title and interest in and to (A) all other real and personal property (tangible and intangible) that is used primarily in connection with the Business, (B) to the extent transferable and only to the extent related to the Purchased Assets, the full benefit of all representations, warranties, guarantees, indemnities, undertakings, certificates, covenants, agreements and all security therefor received by the Seller on the purchase or other acquisition of the Purchased Assets, and (C) any rights, demands, claims, credits, allowances, rebates, causes of action, known or unknown, or rights of setoff, other than against Seller or any Affiliates, arising out of or relating to any of the Purchased Assets.
(b) Notwithstanding anything in Section 2.01(a) to the contrary, the Seller shall not sell, convey, assign, transfer or deliver, nor cause to be sold, conveyed, assigned, transferred or delivered, to the Purchaser, and the Purchaser shall not purchase, and the Purchased Assets shall not include, the Seller’s right, title and interest in and to any of the following assets (the “Dagger Excluded Assets”)):
(i) any right, property or asset that is listed or described in Section 2.01(b)(i) of the Disclosure Schedule;
(ii) the Purchase Price Bank Account;
(iii) all cash and cash equivalents, securities, and negotiable instruments of the Seller on hand, in each case free lock boxes, in financial institutions or elsewhere, including all cash residing in any collateral cash account securing any obligation or contingent obligation of the Seller or any Affiliates;
(iv) any rights to Tax refunds, credits or similar benefits attributable to Excluded Taxes;
(v) the company seal, minute books, charter documents, stock or equity record books and clear such other books and records as pertain to the organization, existence or capitalization of all Security Intereststhe Seller, except Permitted Encumbrances:
2.1.1 all contracts and as well as any other arrangements records or materials relating to the Business pursuant to which Arrow is providing goods and/or servicesSeller generally, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating not involving or directly related to the Business, excluding Purchased Assets or the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless operations of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 (vi) all of Arrowthe Seller’s tangible right, title and interest in and to the Retained Names and Marks;
(vii) all rights of the Seller under this Agreement and the Ancillary Agreements;
(viii) Tax Returns of the Seller, other than those relating solely to the Purchased Assets or the Business, except that income tax returns and documents and records related to such income tax returns (whether or not relating solely to the Purchased Assets or the Business) shall be Excluded Assets;
(ix) all current and prior insurance policies of the Seller and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(x) any rights, demands, claims, actions, including, without limitation, causes of action constituting avoidance actions or other claims of Sellers’ estates under chapter 5 of the Bankruptcy Code;
(xi) any Material Contract and rights thereunder which the Bankruptcy Court or Canadian Court has determined shall not be assigned to the Purchaser;
(xii) any assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”)Employee Plans;
2.1.9 all (xiii) any assets primarily used by the Seller or any Affiliates in the conduct of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the any Excluded Business;
2.1.12 (xiv) all Permits relating to personal property (tangible and intangible) located at the Business or Portland Premises that is used primarily in the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferredconduct of any Excluded Business; and
2.1.13 all of Arrow(xv) the Seller’s other tangible interest in LFPLLP, including any Contracts with LFPLLP and intangible assets related to the Businessrights thereunder.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Pope & Talbot Inc /De/)
Purchase and Sale of Assets. Upon On the terms and subject to the terms conditions set forth herein, and conditions hereofsubject to Section 2.10 and, with respect to the Government Prime Contracts, Section 5.10, at the Closing, Arrow Seller shall sell, transfer and assign Transfer to Acquisition SubBuyer, and Acquisition Sub Buyer shall purchase from Seller, free and acquire from Arrowclear of all Encumbrances (other than Permitted Encumbrances), all of Seller’s right, title and interest as of the Closing in and to the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leasesfollowing assets, subleasesexcept to the extent that they are Excluded Assets (collectively, licenses or other agreements the “Transferred Assets”):
(a) all Transferred Contracts, including Government Contracts; and all accepted and unfilled orders for the use sale of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments products and related rights paid or obtained services entered into by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate Seller Related to the Business;
2.1.8 (b) all Government Bids;
(c) all Transferred Intellectual Property;
(d) all Fixtures and Equipment;
(e) all Real Property Leases;
(f) all Books and Records;
(g) all Accounts Receivable;
(h) all IT Assets (i) owned by Seller and exclusively used by or exclusively related to the Business and (ii) that are necessary to perform an obligation under a Transferred Contract (collectively, the “Transferred IT Assets”);
(i) all Actions available to or being pursued by Seller to the extent Related to the Business or the Transferred Assets, the Assumed Liabilities or the ownership, use, function or value of Arrow’s tangible any Transferred Asset, whether arising by way of counterclaim or otherwise, whether known or unknown, absolute or contingent, matured or unmatured, determined or undeterminable, except to the extent related to Seller Licensed Intellectual Property;
(j) all credits, prepaid expenses, deferred charges, advance payments, refunds, security deposits, prepaid items and duties (other than prepaid insurance) to the extent Related to the Business or Related to a Transferred Asset;
(k) all goodwill, if any, to the extent Related to the Business;
(l) to the extent transferable under applicable Law, all Permits held by Seller Related to the Business;
(m) all guaranties, warranties, indemnities and similar rights in favor of Seller to the extent Related to the Business or related to any Transferred Asset; and
(n) all other assets primarily relating Related to the Business (other than those tangible assetsassets of the types referred to in clauses (a)-(m) above that are specifically excluded as a result of the qualifications, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office exceptions and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”limitations set forth therein).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Unisys Corp), Asset Purchase Agreement (Science Applications International Corp)
Purchase and Sale of Assets. Upon At the Closing and subject to on the Closing Date, on the terms and conditions hereofset forth herein, at the ClosingSeller shall, Arrow and shall cause the Subsidiary to, sell, assign, transfer and assign deliver to Acquisition Sub, the Buyer and Acquisition Sub the Buyer shall purchase and acquire from Arroweach Company, all right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support of the BusinessAssets owned by such Company, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interestsliens, encumbrances, security interests, options, pledges of any kind whatsoever, except for Permitted EncumbrancesLiens and Permitted Encumbrances other than the Excluded Assets. The assets, properties and rights to be sold by each Company and purchased by the Buyer under this Agreement (collectively, the "Assets") are:
2.1.1 (a) the Real Property designated as being owned by each Company on Schedule 1.1(b) hereto and the leasehold interests owned by each Company in the Warehouse Leased Real Property;
(b) the Accounts Receivable which shall be set forth on a listing delivered by Seller at Closing or as soon as practicable thereafter and reasonably acceptable to Buyer;
(c) the Inventory which shall be set forth on a listing delivered by Seller at Closing or as soon as practicable thereafter and reasonably acceptable to Buyer;
(d) all contracts machinery, equipment, furniture, fixtures, vehicles, computer hardware and software (including software licenses) and other arrangements personal property of each Company used in the Business set forth on Schedule 2.1(d) attached hereto;
(e) all of the following items used by each Company in the conduct and operation of the Business: (i) customer and contact lists, including names, addresses and telephone numbers, (ii) sales, product and promotional data, catalogs, brochures, literature, forms, mailing lists, art work, photographs and advertising materials, (iii) vendor lists, including names, addresses and the names of their representatives, (iv) product specifications and plans and drawings related thereto and (v) other Intellectual Property;
(f) all of the prepaid expenses, deposits and credits relating to the Business pursuant set forth on Schedule 2(f) -------------- hereto;
(g) subject to which Arrow is providing goods and/or servicesthe provisions of Section 2.4 below, and all proposalsof each Company's rights under the Contracts; -----------
(h) all backlog, bids and offers for future such orders, contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements commitments for the use sale of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained products sold by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 (i) subject to the provisions of Section 2.4 below, all permits, approvals, qualifications, and the like issued by any government or governmental unit, agency, board, body, or instrumentality, whether foreign, federal, state, local or otherwise relating to or necessary to the conduct and operation of Arrow’s tangible assets primarily the Business set forth on Schedule 2.1(i) which by their express terms are assignable; and
(j) all business records relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2)but excluding any tax analysis and workpapers and core corporate records, including all furniture, fixtures, machinery, office minute books of each Company's Board of Directors and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 shareholders (the “Dagger Tangible Assets”"Excluded Records");
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Alltrista Corp), Asset Purchase Agreement (Alltrista Corp)
Purchase and Sale of Assets. Upon and subject to the terms and conditions hereofherein set forth, Seller hereby agrees to (or cause certain of its Affiliates to) sell, convey, transfer, assign, grant and deliver to Purchaser, and Purchaser hereby agrees to purchase, acquire and accept from Seller (and certain of its Affiliates) at the Closing, Arrow shall sell, transfer and assign to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arrow, Closing all of Seller’s right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets owned or used by Seller and relating to the Transferred Business (collectively, the “Dagger Transferred Assets”), in each case free and clear of all Security Interests, except Permitted EncumbrancesLiens other than as expressly set forth herein:
2.1.1 (i) the rights to conduct, manage and operate the Transferred Business, together with all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and goodwill related thereto;
(ii) all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed Transferred Intellectual Property;
(iii) all Tangible Assets set forth on Schedule 2.1.1 (the “Dagger Engagements”2.1(a)(iii);
2.1.2 (iv) all contracts of Seller’s right, title, and other arrangements pursuant to which Arrow formerly provided goods and/or services relating interest in and under all Permits of Seller used in connection with the Transferred Business that may be assigned by Seller to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”)Purchaser;
2.1.3 (v) all available lists and databases (in an electronic or other contracts relating form reasonably required or acceptable to the Business Purchaser) of vendors, suppliers, advertisers, subscribers, customers, registrants, industry experts, partners, sponsors, endorsers, users (including, but not limited to, feedlot owners and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”ranchers), but excluding other Persons or entities required to organize, promote, produce, operate and manage the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Transferred Business and all other tangible assets as materially listed on Schedule 2.1.8 (Persons that have informed Seller that they do not wish to be contacted in connection with any future activities of the “Dagger Tangible Assets”);
2.1.9 all Transferred Business, including, with respect to each of Arrow’s accounts receivable the forgoing categories, names, addresses, telephone numbers, email addresses, website addresses, demographic data, call histories, order histories and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other booksinformation required to organize, paperspromote, ledgers, documents produce and records relating to manage the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Transferred Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary SharesParticipant Lists” and each Person so identified, a “Participant”);
(vi) all of Seller’s right, title, and interest in the Contracts set forth on Schedule 3.16 (collectively, the “Assumed Contracts”);
(vii) all printed or electronic materials (including on-line materials and content and on-line newsletters and publications) relating to the Transferred Business in the possession of Seller; and
(viii) all of Seller’s available financial records, correspondence, data, files and all other books, records and files relating to the Transferred Business or employees of the Transferred Business that are hired by Purchaser.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Integrated Management Information, Inc.), Asset Purchase Agreement (Integrated Management Information, Inc.)
Purchase and Sale of Assets. Upon the terms and subject to the terms and conditions hereofof this Agreement, at the Closing, Arrow Seller shall (or Seller shall cause the Specified Affiliates to) sell, transfer assign, transfer, convey and assign deliver, or cause to Acquisition Subbe sold, assigned, transferred, conveyed and delivered, to Purchaser, and Acquisition Sub Purchaser shall purchase and acquire from ArrowSeller, all right, title and interest of Seller and its Affiliates as of the Closing in and to all of the assets utilized in connection with that are primarily related to the performance and technical and administrative support of the Specified Business, including the following assets (the “Dagger Assets”)and subject to Section 2.2, in each case case, free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, Encumbrances (other than those, if any, which constitute Excluded Assets under Section 2.2Permitted Encumbrances) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary SharesPurchased Assets”), including but not limited to:
(a) all Product IP together with (i) any and all goodwill symbolized thereby and associated therewith and (ii) any and all rights to obtain renewals, reissues, reexaminations, supplemental examinations and certificates and extensions of registrations, exclusivities, or other legal protections directly related to Product IP;
(b) all Regulatory Materials, including the applications set forth on Schedule 2.1(b) and all supplements thereto, in each case to the extent owned by Seller or the Specified Affiliates and transferable to Purchaser (the “Specified Authorizations”);
(c) all rights of Seller and the Specified Affiliates as of the Closing Date in, to, and under the Contracts set forth on Schedule 2.1(c) (including any additional Contracts listed on Schedule 2.1(c) as updated by Seller and delivered to Purchaser at least four Business Days prior to the anticipated Closing Date) (the “Specified Contracts”) except, in the case of any Specified Contract, not such portion of the Specified Contract (or any statement of work or work order pursuant to such Specified Contract) to the extent relating to any products other than the Products and any business of Seller and its Affiliates other than the Specified Business (which excluded portion may, but is not required to, be identified in Schedule 2.1(c));
(d) all Inventory;
(e) all of the rights, interests and benefits accruing under all Permits and Governmental Authorizations primarily relating to the Products, and all pending applications therefor, including the rights set forth on Schedule 2.1(e);
(f) all (i) research and development reports and disclosure memoranda in the possession of or controlled by Seller relating to the Products, including study reports, clinical trial related documents including consent forms, study contracts, site agreements, manuscripts and in process publications and (ii) worldwide safety reports with respect to any Products, in each case to the extent in the possession of Seller or any Affiliate; provided, in each case, that Seller may redact any information contained in the items set forth in clauses (i) and (ii) that is unrelated to the Products;
(g) all claims of Seller and its Affiliates against third parties relating primarily to the Purchased Assets or Assumed Liabilities (other than claims, counterclaims, defenses, causes of action, rights of recovery, rights of set-off and rights of subrogation against any third parties relating to Excluded Assets or Excluded Liabilities);
(h) all Tax records (including all Returns and supporting work papers) primarily related to the Purchased Assets or the Specified Business, other than income Tax records of any Seller or Specified Affiliate;
(i) labeling, informational letters, sales training materials, trade show materials, advertising, marketing, sales, artwork and promotional materials, in each case that are currently in use and in the physical possession of or under the control of Seller and the Specified Affiliates as of the Closing Date and that are related primarily to the Specified Business and the promotion or sale of the Products (“Specified Marketing Materials”); provided, with respect to the Specified Marketing Materials that are included in documents which also include portions that are not related to the Specified Business or the Products (the “Mingled Marketing Materials”), Seller shall only be required to use commercially reasonable efforts to identify, extract and deliver the portions that relate to the Specified Business or the Products from the other portions of such Mingled Marketing Materials which do not relate to the Specified Business or the Products (it being understood that Seller may retain a copy of such Mingled Marketing Materials);
(j) any prepaid fees payable to the FDA or other Governmental Entities with respect to the Products, including, for the avoidance of doubt, the Prepaid Amounts;
(k) all employment records with respect to the Transferring Employees; provided, that such employment records shall be deemed not to include any records (x) that are subject to restrictions on transfer pursuant to applicable Law (including the Health Insurance Portability and Accountability Act of 1996) or with respect to which transfer would require any Authorization under applicable Law or (y) relating to performance ratings or assessments of employees of Seller or the Specified Affiliates; and
(l) all (i) books, records, files and documentation relating primarily to the Specified Business or the Products and (ii) marketing plans, target lists and correspondence with and any reports submitted by Seller or the Specified Affiliates to any Governmental Entity that are primarily related to the Products, to the extent Seller or a Specified Affiliate normally retains such correspondence and reports in the ordinary course of its regulatory activities; in each case that are under the control of Seller or a Specified Affiliate as of the Closing Date and that are related primarily to the Specified Business or the Products (the items identified in clauses “(i)” and “(ii)”, the “Specified Books and Records” and, with respect to the Specified Books and Records that are included in documents which also include portions that are not related to the Specified Business or the Products, the “Mingled Books and Records”); provided, that the Specified Books and Records shall be deemed not to include any books, records or other items (x) that are subject to restrictions on transfer pursuant to applicable Law (including the Health Insurance Portability and Accountability Act of 1996) or with respect to which transfer would require any Authorization under applicable Law or (y) relating to performance ratings or assessments of employees of Seller or the Specified Affiliates; provided further that (A) with respect to Mingled Books and Records that are included in documents which also include portions that are not related to the Specified Business or the Products, Seller shall only be required to use commercially reasonable efforts to identify, extract and deliver the portions that are material Mingled Books and Records from the other portions of such Mingled Books and Records which do not relate to the Specified Business or the Products (it being understood that Seller may retain a copy of such Mingled Books and Records) and (B) if requested by Purchaser, Seller shall use commercially reasonable efforts to obtain any necessary Governmental Authorizations required to transfer any books, records or other items subject to Governmental Authorization under applicable Law. To the extent permitted by applicable Law, title to the Purchased Assets which are capable of passing by delivery shall pass by delivery at the Closing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Mirum Pharmaceuticals, Inc.), Asset Purchase Agreement (Travere Therapeutics, Inc.)
Purchase and Sale of Assets. Upon At the Closing, on the terms and subject to the terms and conditions hereofset forth in this Agreement, at the Closing, Arrow shall Seller will sell, transfer convey, transfer, assign and assign deliver to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arrow, all right, title and interest in and to Buyer (i) the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers owned vessels listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts 1.1A together with their respective engines, tackle, winches, cranes, cordage, general outfit, electronic and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Businessnavigation equipment, excluding the contracts radio installations, appurtenances, appliances, Inventory, spare parts, stores, tools and other arrangements listed provisions designated for such vessels, whether on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses board or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries ashore (collectively, the “Dagger Subsidiary SharesEquipment”), (the owned vessels and their related Equipment are referred to collectively as the “Vessels”) and certain other related assets used in the Business and listed on Schedule 1.1A, (ii) all Permits (to the extent transferable) relating to the Vessels and listed on Schedule 1.1B, (iii) all business records relating exclusively to the Vessels and listed on Schedule 1.1C (the “Records”); (iv) any technical or regulatory documentation pertaining to the Vessels that Seller may have in its possession and which is not already aboard the Vessels, including, without limitation, classification certificates, loadline certificates, radio licenses, operating manuals, vessel logs and preventive maintenance manuals (collectively, the “Vessel Documentation”); (v) all drawings and intellectual property related to the Vessels and listed on Schedule 1.1D (the “Intellectual Property”); and (vi) the Warri Lease Agreement, together with all equipment used in the Business located at Seller’s leased shore-based facility used in the operation of the Business located in Warri, Nigeria (the “Warri Facility”). The assets described in the foregoing clauses (i) through (vi) are hereinafter collectively referred to as the “Purchased Assets.” Except for the Purchased Assets and Assigned Contracts, Buyer is not acquiring any asset or property of Seller, and all such excluded assets (the “Excluded Assets”) shall be retained by Seller.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Hercules Offshore, Inc.)
Purchase and Sale of Assets. Upon (a) On the terms and subject to the terms and conditions hereofof this Agreement, at on the ClosingClosing Date, Arrow the Sellers shall sell, assign, transfer and assign convey to Acquisition Subthe Purchaser, and Acquisition Sub the Purchaser shall purchase from the Sellers, free and acquire clear of all Encumbrances (other then Permitted Liens) all of the Assets on the Closing Date, other than the Excluded Assets (the “Transferred Assets”).
(b) The Transferred Assets shall not include the following Assets (the “Excluded Assets”):
(i) all of the Sellers’ cash (including, without limitation, all checks and drafts), cash equivalents and marketable securities on hand or deposited in bank accounts, deposit accounts, lockbox accounts or any other accounts with banks or other depositories on or prior to the Closing Date, and all bank, depository and other accounts related thereto;
(ii) all refunds and claims for refunds of income Taxes paid by the Sellers or any of their Affiliates arising prior to or on the Closing Date;
(iii) all rights and interests of the Sellers or any of their Affiliates in, to or under any insurance policy, including any prepaid expense in respect thereof and any cash surrender value thereof;
(iv) all debts and other obligations due to the Sellers from Arrow, any Affiliate of the Sellers;
(v) income Tax records and Returns of the Sellers or of any Affiliate of the Sellers;
(vi) all right, title and interest in and to the assets utilized in connection with names, trademarks, tradenames and service marks and the performance other names, trademarks, tradenames and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers service marks listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts Exhibit 1.01(f) and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries variations thereof (collectively, the “Dagger Subsidiary SharesNames”), and all rights to use the Names, and all items marked with the Names, including without limitation, promotional materials, packaging materials, stationery, signs, business cards, business manuals and training videos;
(vii) other than as provided pursuant to Section 5.06, any rights to receive corporate overhead and other services provided to the Business by the corporate offices of the Sellers or otherwise shared among the businesses conducted by the Sellers or any of its Affiliates;
(viii) all property and assets of the Plans;
(ix) property and assets which are listed on Section 2.01(b) of the Disclosure Schedule;
(x) all the Sellers’ cancelled checks and bank statements;
(xi) all claims, causes of action, rights of recovery, rights of set-off and other similar rights of any kind, to the extent relating to any Excluded Asset or any Excluded Liability;
(xii) the XxxxXxXxxXX.xxx and XxxxXxXX.xxx websites, together with other state and local versions of such websites, including all proprietary content on those websites and the right to access such content (other than as generally available to the public); and
(xiii) the Sellers’ organizational and capitalization materials and corporate records.
Appears in 2 contracts
Samples: Asset Purchase Agreement (GateHouse Media, Inc.), Asset Purchase Agreement (GateHouse Media, Inc.)
Purchase and Sale of Assets. Upon On the terms and subject to the terms and conditions hereofset forth in this Agreement, at on the ClosingClosing Date, Arrow or in the case of the COD Purchased Contracts, on the Commercial Operation Date, Sellers shall sell, transfer assign, transfer, convey and assign deliver to Acquisition SubBuyer (or its assignees as to certain assets), and Acquisition Sub Buyer shall purchase from Sellers, free and acquire from Arrowclear of any Liens other than Permitted Liens, all right, title and interest in in, to and to the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 under all of the leases, subleases, licenses or other agreements for the use Assets of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and Sellers related rights paid or obtained by Arrow relating to the Businessdevelopment, construction and operation of the Project, wherever located and whether now existing or hereafter acquired (other than those, if any, which constitute the Excluded Assets under Section 2.2Assets) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary SharesPurchased Assets”) in accordance with the Deeds, Bills of Sale and Assignment and Assumption Agreements, including, without limitation, the following:
(a) the Permits and Permit applications;
(b) the Owned Real Property, including all ownership documents related thereto;
(c) the Land Contracts;
(d) the Purchased Contracts, including the GIA;
(e) an FAA Determination with respect to each WTG Location;
(f) the final versions of the Reports;
(g) the Bird and Bat Conservation Strategy;
(h) the Site Plan;
(i) the Wind Data (provided, that EDF-USD automatically and without further action shall be granted an irrevocable, perpetual, royalty-free, non-exclusive license to use such Wind Data);
(j) the MET Towers;
(k) the 5% Safe Harbor Turbines, provided, that in the event that some or all of the 5% Safe Harbor Turbines are determined prior to the Closing Date not to qualify the Project for 100% PTCs, then in accordance with Section 6.16 such other Vestas 2.0MW V110 wind turbine components owned by Sellers or any Affiliates of Seller necessary for the Project to qualify for 100% PTCs shall be substituted for the 5% Safe Harbor Turbines;
(l) any other Books and Records; and
(m) any other assets reasonably necessary to achieve Project Commercial Operation.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Otter Tail Corp), Asset Purchase Agreement (Otter Tail Corp)
Purchase and Sale of Assets. Upon On the terms and subject to the terms conditions hereof and conditions hereofin consideration of the Purchase Price paid or payable to Seller by Buyer, at the Closing, Arrow shall Seller will sell, transfer convey, transfer, assign and deliver or cause its Subsidiaries to sell, convey, transfer, assign and deliver to Acquisition SubBuyer, and Acquisition Sub shall purchase Buyer will purchase, take delivery of and acquire from ArrowSeller or its Subsidiaries, all of Seller’s and its Subsidiaries’ right, title and interest in and to the assets utilized in connection with the performance following assets, properties, rights and technical and administrative support of the Businessinterests, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries Encumbrances (collectively, the “Dagger Subsidiary SharesPurchased Assets”):
(a) the Patents listed on Schedule 2.1(a);
(b) the Trademarks listed on Schedule 2.1(b);
(c) all Promotional Materials in Seller’s possession and control and all Copyrights thereto;
(d) all Regulatory Filings and Regulatory Approvals primarily related to the Products, other than the PTB NDA and the PTB Supplemental NDA, including the Regulatory Approvals listed on Schedule 2.1(d) and all files related thereto;
(e) the Contracts listed on Schedule 2.1(e) (the “Assigned Contracts”);
(f) all Books and Records and complete and correct copies of all Tax Returns and other documents pertaining to Taxes, if any, primarily related to the Purchased Assets or the Business in Seller’s possession or control; provided, that Seller shall be entitled to exclude or appropriately redact such documents, information, materials and data from the applicable Books and Records to the extent not related to Purchased Assets or the Business and retain the original (in the case of such exclusion) or a copy (in the case of such redaction) thereof; provided, further, that any such exclusion or redaction may not degrade or impair Buyer’s ability to use any such Books and Records;
(g) to the extent in Seller’s possession or control, all pre-clinical, clinical and process development data and reports primarily relating to the research, Commercialization or Development of the Products, including all raw data from clinical trials of Prochieve or other Products, all case report forms relating thereto and all statistical programs developed (or modified in a manner material to the use or function thereof (other than through user preferences)) to analyze data from such clinical trials; all market research data, market intelligence reports, statistical programs (if any) used for marketing and sales research primarily related to the marketing and sale of Products; data contained in laboratory notebooks primarily relating to the Products; all adverse experience reports and files primarily related to the Products (including source documentation) and all periodic adverse experience reports and all data contained in electronic data bases primarily relating to adverse experience reports and periodic adverse experience reports for the Products; all analytical and quality control data for the Products; and all correspondence with the FDA primarily relating to the Products (all of the foregoing referenced in this paragraph (g), collectively, “Product Data”);
(h) all refunds, credits and claims for refunds or credits relating to Property Taxes allocable to any Post-Closing Tax Period, in favor of Seller or any of its Affiliates or any of their respective employees to the extent relating to any Purchased Asset or any Assumed Liability; and
(i) the Regulatory Filings and Regulatory Approval, to the extent made or obtained by or on behalf of Seller, necessary for Commercializing the PTB Indication, which Regulatory Filings and Regulatory Approval will consist of an Original NDA (the “PTB NDA”) or, with the approval of the Joint Development Committee, an Efficacy Supplement to NDA No. 20,701 (the “PTB Supplemental NDA”).
Appears in 2 contracts
Samples: Purchase and Collaboration Agreement (Watson Pharmaceuticals Inc), Purchase and Collaboration Agreement (Columbia Laboratories Inc)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofof this Agreement, at and in reliance upon the Closingrepresentations, Arrow warranties, covenants and agreements made in this Agreement by the Seller and the Buyer, the Buyer shall purchase, accept and acquire from Seller free and clear of any Liens (other than Permitted Liens), and Seller shall sell, transfer transfer, convey, assign and assign deliver to Acquisition Subthe Buyer, all of the assets and properties of Seller (but excluding the Excluded Assets) used or held in the conduct of or in connection with the Business, whether 1 tangible or intangible, real, personal or mixed, and Acquisition Sub shall purchase and acquire from Arrowwherever located (collectively, the “Purchased Assets”), including, without limitation, the following:
(a) All Inventories;
(b) Subject to any prorations as contemplated by Section 2.4, and/or the replacement of any guaranties as contemplated in Section 8.2, all prepaid expenses, advance payments, deposits and rights to receive discounts, refunds, rebates, awards and the like to the extent related to the Purchased Assets, the Ethanol Plan, the Business and the Assumed Contracts or Permits (collectively, the “Prepaid Expenses”);
(c) Those Contracts of Seller related to the Ethanol Plant identified on Schedule 1.1(c) (collectively, the “Assumed Contracts”);
(d) The real property described on Schedule 1.1(d) (the “Owned Land”) and (i) all buildings, facilities, structures, warehouses, grain storage bins, silos, tanks, railroad tracks, scales, improvements, fixtures situated thereon (the “Owned Improvements”), and (ii) Seller’s right, title and interest in and to all rights, privileges, easements, rights-of-way, appurtenances and other real property rights appurtenant or related thereto (collectively, the assets “Ancillary Real Property Rights”, and together with the Owned Land and the Owned Improvements, the “Owned Real Estate”);
(e) All of Seller’s leasehold interest in and to any real property (as lessee or sublessee) leased or subleased as set forth in the Real Property Leases described on Schedule 1.1(e), including (i) all buildings, warehouses, grain storage bins, silos, tanks, railroad tracks, scales, improvements, fixtures situated on such leased or subleased property, and (ii) all Ancillary Real Property Rights appurtenant or related thereto (collectively, the “Leased Real Property”);
(f) All equipment (building or office), machinery, tooling, dies, molds, patterns, stampings, prototypes, parts, components, projects in process, furniture, appliances, artwork, computers, computer terminals and printers, telephone systems, telecopiers and photocopiers, office supplies and office equipment, merchandise, supplies, accessories and other tangible personal property of every kind and description, which are owned or leased by the Seller, and utilized in connection with the performance and technical and administrative support operations of the Business, including the following assets (the “Dagger Assets”)including, in each case free and clear of all Security Interestswithout limitation, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers those items listed on Schedule 2.1.1 1.1(f) attached hereto (collectively, the “Dagger EngagementsEquipment”);
2.1.2 (g) All Plant Specific Intellectual Property set forth on Schedule 1.1(g), all contracts goodwill associated with respect thereto, licenses and other arrangements pursuant sublicenses granted and obtained with respect thereto and rights thereunder, remedies against infringements thereof and rights to protection of interests therein under the Laws of all jurisdictions;
(h) All qualifications, registrations, filings, privileges, franchises, immunities, licenses, permits, authorizations and approvals of Governmental Authorities which Arrow formerly provided goods are used or required in order for the Seller to own and/or services relating to operate the Business, excluding the contracts including, without limitation, all certificates of occupancy and other arrangements listed on Schedule 2.1.2 certificates, licenses and permits relating to zoning, building, housing, safety, Environmental Laws, fire and health (collectively, the “Dagger Completed EngagementsPermits”);
2.1.3 all other contracts relating (i) All Renewable Identification Numbers (“RINs”) generated pursuant to the Business RFS Program from the Ethanol Plant’s final product inventories and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger ContractsRIN Pathway;
2.1.4 all (j) All Records;
(k) All of the leasesSeller’s rights and remedies, subleasesunder warranty or otherwise, licenses against a manufacturer, vendor or other agreements Person for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”)any defects in any Purchased Asset;
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained (l) All deposits held by Arrow relating to the Business, (other than thoseSeller, if any, which constitute Excluded Assets under Section 2.2) that exist as of with respect to services to be performed or products to be delivered after the Closing;
2.1.6 all of the rights in or Closing relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all (m) All other properties, assets and rights of Arrow’s tangible assets primarily relating to every kind, character or description which are owned, used or held for use by Seller in connection with the Business (other than those tangible assets, if any, Ethanol Plant and which constitute are not Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all (n) The maintenance and capital spares, joints, valves, parts and tools owned by Seller or its Affiliates as of Arrow’s accounts receivable the Closing and unbilled accounts receivable located as of the Closing at the Ethanol Plant and work-in-process that relate to used exclusively in connection with the Business (the “Dagger Receivables” and Spares”). Schedule 1.1(n) contains a list of the “Dagger Work-In-Process,” respectively)Spares as of December 8, 2020;
2.1.10 all books(o) All causes of action, paperschoses in action and rights of recovery with respect to any of the foregoing; and
(p) All commercial and commodity Contracts entered into by the Seller or any Affiliate of Seller on market-based terms for (i) the purchase of corn to be used in the Ethanol Plant, ledgersand (ii) the sale of ethanol, documents corn oil, and records relating to distillers grains (dry, modified and wet) produced at the Dagger AssetsEthanol Plant, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits which are listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries 1.1(p) attached hereto (collectively, the “Dagger Subsidiary SharesCommodity Contracts”).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Green Plains Inc.), Asset Purchase Agreement (Green Plains Inc.)
Purchase and Sale of Assets. Upon the terms and subject to the terms and conditions hereofset forth in this Agreement, at the ClosingSeller hereby agrees to sell, Arrow shall sellconvey, transfer and assign to Acquisition SubPurchaser, and Acquisition Sub shall Purchaser hereby agrees to purchase and acquire from ArrowSeller, all of the right, title and interest of Seller in, to and under the assets, properties and business, of every kind and description, wherever located, real, personal or mixed, tangible or intangible, owned, held or used in the conduct of the Business by Seller on the Closing Date, including without limitation, all right, title and interest of Seller and its Affiliates in, to and under the following, which (whether or not listed below) are hereinafter collectively referred to as the “Assets”:
(a) all of the equipment, computers, servers, hardware, appliances, implements, and all other tangible personal property that are owned by Seller or any of its Affiliates and have been used in and to the assets utilized in connection with the performance and technical and administrative support conduct of the Business, including without limitation, the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers items listed on Schedule 2.1.1 (the “Dagger Engagements”1.01(a);
2.1.2 (b) all contracts and other arrangements pursuant Real Property Leases to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow Seller is a party, or which affect the Business or the Assets, including employment agreementswithout limitation, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts the items listed on Schedule 1.01(b);
(c) all contracts (the “Dagger Contracts”)) to which Seller is a party, but excluding or which affect the Dagger LeasesBusiness or the Assets, regardless including without limitation, leases of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all personal property, licenses in and out of the leasesSeller for Intellectual Property, subleasesand including without limitation, licenses or other agreements for the use of physical locations items listed on Schedule 2.1.4 (1.01(c), to the “Dagger Leases”)extent such Contracts can be validly and effectively assigned, but subject to Section 1.06;
2.1.5 (d) all prepaid expensesrights, deposits, advances, other prepayments claims and related rights paid causes of action against third parties resulting from or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as operation of the ClosingBusiness or the Assets prior to the Closing Date, including without limitation, any rights, claims and causes of action arising under warranties from vendors and other third parties;
2.1.6 (e) all of the rights in governmental licenses, permits, authorizations, consents or approvals affecting or relating to intellectual property described in the Ancillary Agreement relating to intellectual propertySeller, the form of which is attached as Exhibit A Business or the Assets (“Permits”) listed on Schedule 1.01(e) to the “Intellectual Property Agreement”)extent they can be validly and effectively assigned;
2.1.7 (f) all accounts receivable, notes receivable, prepaid expenses and insurance and indemnity claims to the extent related to any of Arrow’s training materials, speaking materials and sales the Assets or promotional materials that relate to the Business;
2.1.8 (g) all of Arrow’s tangible assets primarily relating to goodwill associated with the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 (h) all Permits relating Business Records;
(i) Seller’s right to use the Business or name “RVUE” and all other names used in conducting the Dagger FacilitiesBusiness, and all derivations thereof, in connection with Purchaser’s future conduct of the Business;
(j) all Intellectual Property Assets, including without limitation, the permits items listed on Schedule 2.1.12, to the extent the same may be transferred1.01(j); and
2.1.13 (k) all other privileges, rights, interests, properties and assets of Arrow’s other tangible whatever nature and intangible assets related wherever located that are owned, used or intended for use in connection with, or that are necessary to the Business.continued conduct of, the Business as presently conducted or planned to be conducted as of the Closing Date; and
2.1.14 all (l) All of Arrow’s the issued and outstanding shares of capital stock and other voting interests in the Dagger Subsidiaries of Rvue consisting of 10,000,000 shares of common stock, par value $0.001 per share (collectively, the “Dagger Subsidiary Rvue Shares”); provided that, notwithstanding the foregoing, the Assets shall not include the Excluded Assets.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Argo Digital Solutions Inc), Asset Purchase Agreement (rVue Holdings, Inc.)
Purchase and Sale of Assets. Upon At the earliest possible time that DTA is able to cause Target to consummate the Transaction following (a) the purchase by DTA of all of the outstanding Common Shares of Target, or (b) the acquisition of all or substantially all of the Apparel Fabric Business of Target, DTA hereby agrees to sell to GL and subject GL hereby agrees to purchase from DTA, the Apparel Fabric Business of Target for cash in an amount to be determined in accordance with Section 3 hereof. The exact structure of the transaction pursuant to which GL will acquire the Apparel Fabric Business and PGI will acquire the Nonwovens Business will be determined by the Parties in good faith to accomplish the objectives contained in this Agreement and minimize overall tax liabilities. The terms of the agreements relating to the purchase of the Apparel Fabric Business and Nonwovens Business, as applicable, shall contain customary terms and conditions hereoffor acquisitions of public companies. In particular, there will be no survival of any representations or warranties, and limited customary indemnification provisions (related to the allocation of liabilities of the Businesses) contained in the purchase agreements. To the extent any assets are used in both the Apparel Fabric Business and Nonwovens Business, the Parties will enter into an agreement providing for joint use, or will otherwise agree to an equitable solution for such asset. In the event the Parties are unable to negotiate in good faith an agreement or agreements for the purchase and sale of the Apparel Fabric Business or the purchase and sale of the Nonwovens Business, as applicable, at the Closingoption of DTA, Arrow the Apparel Fabric Business shall sellbe sold to GL by either a sale of stock of the corporation or corporations containing the Apparel Fabric Business, transfer or by a sale of the assets necessary for the Apparel Fabric Business, on an "as is," "where is" and assign to Acquisition Sub"with all faults" basis, without any express or implied representations, and Acquisition Sub shall purchase and acquire from Arrowwithout any other representations, all rightwarranties, title and interest in and to the assets utilized in connection with the performance and technical and administrative support of the Businesscovenants, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, indemnities (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to allocation of liabilities of the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”Businesses).
Appears in 1 contract
Purchase and Sale of Assets. Upon (a) On the terms and subject to the terms conditions contained in this Agreement, on the Closing Date, Purchaser shall purchase from Sellers, and conditions hereof, at the Closing, Arrow Sellers shall sell, convey, assign, transfer and assign deliver to Acquisition SubPurchaser, free and clear of all Liens by appropriate warranty bills of sale, warranty deeds, assignments and other instruments satisfactory to Purchaser and its counsel, all of the following assets of Sellers (collectively, the “Purchased Assets”):
(i) all accounts receivable, including without limitation, all trade accounts receivable, notes receivable from customers, vendor credits and accounts receivable from employees and all other obligations from customers with respect to sales of goods or services, whether or not evidenced by a note and whether current or non-current (all of the foregoing are collectively referred to herein as “Accounts Receivable”);
(ii) all prepayments and prepaid expenses that are transferable and related to exclusive distribution or publishing contracts or to inventory;
(iii) all inventory, including raw materials, finished goods, and Acquisition Sub shall purchase contract rights with regard to inventory in development or in process, including finished goods returned by customers of Sellers post-Closing (“Inventory”);
(iv) all furniture, equipment, office supplies, production supplies, spare parts, other miscellaneous supplies and acquire from Arrowother tangible property of any kind wherever located (including all such property located in any building, all rightoffice, title warehouse or other space leased, owned or occupied by any Seller and interest in and related to the Business or in any warehouse where any of the properties and assets utilized in connection with related to the performance and technical and administrative support Business may be located);
(v) the data processing equipment and, to the extent assignable, related software of the Business;
(vi) all lists, records and other information pertaining to customer accounts (whether past or current), suppliers, personnel and agents and all reports, studies, plans, books, ledgers, files and financial, business and accounting records of every kind (including the following assets (the “Dagger Assets”all financial, business and marketing plans), in each case free and clear whether evidenced in writing, electronic data, computer software or otherwise (provided that Sellers shall be entitled to keep a copy of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future any such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”items);
2.1.2 (vii) all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expensesclaims, deposits, advancesprepayments, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature, other prepayments and related rights paid or obtained by Arrow than those relating exclusively to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2or Excluded Liabilities;
(viii) that exist the right to xxxx and receive payment for products shipped or delivered and/or services performed but unbilled or unpaid as of the Closing;
2.1.6 (ix) all Proprietary Rights;
(x) all goodwill as a going concern and all other intangible property, including trademarks, copyrights and corporate names of Sellers, and all goodwill associated with any of them;
(xi) all Government Licenses (but excluding any such permits or licenses which are specifically identified on the License Schedule as not transferable);
(xii) all insurance, warranty and condemnation proceeds received after the date hereof with respect to damage to, nonconformance of or loss to the Purchased Assets;
(xiii) all rights to receive mail and other communications addressed to Sellers including, without limitation, Accounts Receivable payments;
(xiv) all telephone numbers (e.g. “800” numbers) used by Sellers;
(xv) all signs and advertising, marketing and promotional materials;
(xvi) all web sites and e-mail accounts;
(xvii) all Contracts listed on the attached “Assumed Contracts Schedule”; and
(xviii) all choses in action, rights and benefits under any warranties, and rights and benefits under any indemnity provision other than those arising under this Agreement. The purchase and sale of the rights Purchased Assets is referred to in or relating to intellectual property described in this Agreement as the Ancillary Agreement relating to intellectual property“Acquisition.”
(b) Notwithstanding the foregoing, the form following properties, assets, rights and interests of which is attached as Exhibit A Sellers are expressly excluded from the purchase and sale contemplated hereby (the “Intellectual Property Excluded Assets”) and, as such, are not included in the Purchased Assets:
(i) Sellers’ rights under or pursuant to this Agreement”);
2.1.7 (ii) Sellers’ general ledger, accounting records, minute books and corporate seal; provided that Purchaser shall be given copies of the general ledger and accounting records as such documents exist as of the Closing Date;
(iii) any right to receive mail and other communications addressed to Sellers relating exclusively to the Excluded Assets or the Excluded Liabilities;
(iv) all contracts, agreements and arrangements which are not listed in the Assumed Contracts Schedule;
(v) cash, cash equivalents and checks in Sellers’ bank accounts at the effective time of the Closing, all of Arrow’s training materials, speaking materials and sales or promotional materials that relate which shall be distributed to Sellers in the Businessordinary course from the bank accounts;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under vi) except as provided by Section 2.22.1(a)(xi), including rights and benefits under all furnitureinsurance policies;
(vii) all interests in real estate (including, without limitation, fixtures, machineryfittings and improvements thereon, office and easements, licenses, rights of way, permits, and the other equipment appurtenants thereto, including appurtenant rights in and leasehold improvements relating to public streets, whether or not vacated), whether, owned, leased, subleased or otherwise;
(viii) the rights to that part of the Business and all other tangible assets which is the subject of the MLA (as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”hereinafter defined);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible (ix) the properties, assets, rights and intangible assets related to interests listed on the Businessattached “Excluded Assets Schedule.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofset forth herein, at Seller shall (and shall cause, to the Closingextent applicable, Arrow shall its subsidiaries to) sell, transfer assign, transfer, convey and assign deliver to Acquisition SubPurchasers, and Acquisition Sub Purchasers shall purchase from Seller (and acquire from Arrowits subsidiaries), all of Seller’s (and its subsidiaries’) right, title and interest in in, to and under the assets, properties and rights of Seller (and its subsidiaries) set forth below that relate solely to the assets utilized in connection with the performance and technical and administrative support of the Business, including but excluding the following assets Excluded Assets (the as defined below) (collectively, “Dagger Purchased Assets”), in each case free it being understood that IP Purchaser shall purchase all of the IP Assets (as defined below) and clear Purchaser shall purchase all of all Security Interests, except Permitted Encumbrances:the Purchased Assets other than the IP Assets.
2.1.1 all contracts (a) The trademark assets (registrations and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed applications) set forth on Schedule 2.1.1 1.01 hereto (collectively referred to as the “Dagger EngagementsTrademarks”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business(b) The domain names (urls): wxx.xxxxxxxxxxxxxxxx.xxx, excluding the contracts and other arrangements listed on Schedule 2.1.2 wxx.xxxxxxxx-xx.xxx, wxx.xxxxxxxxx.xxx, wxx.xxxxxxxx.xxx (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to URLs” and collectively with the Business and to which Arrow is a partyTrademarks, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible IP Assets”);
2.1.9 all (c) All retail inventory (finished goods) of Arrow’s accounts receivable the Business existing at the Closing and unbilled accounts receivable located at 100 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 (the “Boston Retail Location”) and work400 0xx Xxxxxx XX #000, Xxxxxxxxxxx, XX 00000 (the “Minneapolis Retail Location”, and together with the Boston Retail Location, the “Retail Locations”);
(d) All non-ininventory tangible property owned by the Seller (or its subsidiaries) and located at the Retail Locations (the “Non-process that relate to Inventory Retail Assets”);
(e) All samples, hangers and mannequins used solely by the Business at the New York showroom located at 100 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 (the “Showroom”);
(f) All consigned inventory of the Business (the “Dagger Receivables” consignment accounts include: Body, Garys, Lxx Xxxxxx, Mxxxxxxxxx, Mr. Sxx, Original Octane and Shaia’s) and located at the applicable consignment account;
(g) All rights of Seller (or its subsidiaries) relating to those certain deposits in connection with those certain real estate leases for the Retail Locations and that certain contract associated with the Italy operations of the Business, which in the aggregate equal approximately $80,000 (the “Dagger Work-In-Process,” respectivelyPurchased Deposits”);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to (h) Any rights arising after the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in Closing that are associated with the Dagger Subsidiaries Assumed Contracts (collectively, the “Dagger Subsidiary Shares”defined below).
Appears in 1 contract
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofset forth in this Agreement, at the Closing, Arrow shall Seller agrees to sell, transfer convey, transfer, assign and assign deliver to Acquisition Subthe Buyer, and Acquisition Sub shall the Buyer agrees to purchase from the Seller on the Effective Date, all of the assets of the Business other than the Excluded Assets, including but not limited to, the following whether or not they appear on the Effective Date Balance Sheet (such assets to be referred to herein as the "Assets"):
(a) That certain parcel of real property comprising the Odessa Real Property as more fully described in Schedule 2.1(a) (the "Land"), including all estates, rights, titles and acquire from Arrowinterests in and to Land, including, without limitation, the easements, rights-of-way and other interests described in Schedule 2.1(a), and any and all other rights pertaining thereto (the "Realty Rights");
(b) All estates, rights, titles and interests in and to all plants, factories, warehouses, storage facilities, laboratories, buildings, works, structures, fixtures, landings, constructions in progress, improvements, betterments, installations and additions constructed, erected or located on or attached or affixed to the Land (the "Fixtures and Improvements") (the Land, the Realty Rights and the Fixtures and Improvements may hereinafter be referred to collectively as the "Real Property");
(c) All (i) machinery, equipment, trucks, automobiles, tools, and dies set forth on Schedule 2.1(c), and (ii) all computer hardware, computer software (to the extent transferable), trade fixtures, data processing equipment, tools, dies, furniture, office supplies, spare parts related to the machinery and the equipment, jigs, molds, patterns, drawings, other supplies and all other tangible personal property owned by the Division or used in connection with the Business other than the Inventory, if any, including, but not limited to, that which is set forth on Schedule 2.1(c) and all additions and/or deletions since the date of the Asset List to the Effective Date and the assets described in (ii) herein (collectively, the "Equipment");
(d) All raw materials, Jobs-In-Progress, inventory, equipment and components held for service, rent and/or sale and all supply inventory and other inventories of the Seller owned or used in connection with the Business as set forth on Schedule 2.1(d) (the "Inventory");
(e) Originals or copies of all customer and supplier files, accounting and financial records, sales records, maintenance and production records, and other books and records relating principally to the Business (the "Books and Records");
(f) All right, title and interest of Seller in, to and under all contracts, leases, documents, instruments, agreements, and other written or verbal arrangements and customer prepayments for unshipped goods and/or services, all relating principally to the Business to which the Seller is a party or by which the Seller or the Assets may be bound as more fully described on Schedule 2.1(f), as well as all rights, privileges, deposits, letters of credit, claims, causes of action and options relating or pertaining to the foregoing (collectively, the "Contracts");
(g) All technical data, written specifications, work standards, assembling and process information, operating manuals, operating data and plans, engineering, drawings, schematics, blueprints, confidential information and know-how owned by Seller and used in connection with the Business;
(h) To the extent same are transferable, all right, title and interest in of Seller in, to and to the assets under all governmental and other licenses, permits, franchises, approvals and certificates owned or utilized in connection with the performance conduct of the Business, and technical all rights in connection therewith, all of which are set forth on Schedule 2.1(h) (collectively, the "Licenses");
(i) Copies of all Employee files for those Offered Employees actually hired by Buyer;
(j) All right, title and administrative support interest of Seller, in, to and under all service marks, trademarks, trade and assumed names, patents, inventions, trade secrets and royalty rights (including licenses and sublicenses related thereto) and remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, principally related to the Business, including the following assets name "Multi-Shot and Diamondback" as more fully set forth on Schedule 2.1(j) (collectively, the “Dagger Assets”"Intellectual Property"), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating together with whatever rights Seller may have to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers recover for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than thoseinfringement thereon, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking k) All advertising materials and sales all other printed or promotional written materials that relate related to the conduct of the Business;
2.1.8 all (l) All of Arrow’s tangible assets primarily relating to the Business (other than those tangible assetsSeller's general intangibles, if anyclaims, rights of set off, rights of recoupment and goodwill which constitute Excluded Assets under Section 2.2)are used in the Business, including all furniturecurrent phone numbers and fax numbers, fixturesand further including, machinerybut not limited to, office and other equipment and leasehold improvements relating to the Business and all other tangible assets those that are material as materially listed more fully described on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).2.1
Appears in 1 contract
Samples: Asset Purchase Agreement (Black Warrior Wireline Corp)
Purchase and Sale of Assets. Upon and subject (a) Subject to the terms and conditions hereofin this Agreement and in reliance upon the representations, warranties, covenants and agreements of Seller and Stockholders contained herein, at the Closing, Arrow Buyer shall purchase from Seller, and Seller shall sell, transfer and assign to Acquisition Subassign, transfer, convey, and Acquisition Sub shall purchase deliver to Buyer, free and acquire from Arrowclear of all Liens (other than Permitted Liens), for the consideration specified below in this Article II, all of Seller's right, title and interest in and to all of its assets, properties, rights and interests of Seller, wherever located, (including, for the assets utilized avoidance of doubt, at the Phoenix AZ Facility, the Commerce City Facilities, the Mexican Facilities, the sales show room facilities leased by Seller, customer locations, in-transit or at third party manufacturers), excluding, however, the Excluded Assets (collectively, the "ACQUIRED ASSETS"). The Acquired Assets include, but are not limited to, the following:
(i) all tangible personal property of Seller (other than inventories of Seller as described in connection Section 2.01(a)(vi) below), including fixtures, leasehold improvements, furniture, machinery, equipment, trailers, pallets, tools, dies, molds, spare parts, vehicles (including cars, trucks, tractors, trailers, lifts, vans and other transportation rolling stock), tools, jigs, molds, dies, embossing equipment, "in-store" displays, trade show displays, and similar fixtures, signage, computer hardware, computing and telecommunication devices, including, without limitation, those listed or described on SCHEDULE 2.01(a)(i) together with any express or implied warranty by the manufacturer, seller or lessor of any such item or component part thereof;
(ii) all Intellectual Property of Seller (excluding non-transferable Commercial Software), including but not limited to all Intellectual Property listed on SCHEDULE 3.13(a), SCHEDULE 3.13(b) and SCHEDULE 3.13(c), and all rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions;
(iii) all tangible or physical materials embodying all computer software, credit information, inventory, marketing, personnel, financial, title and other documents, data and similar information and material, however stored;
(iv) the Leases for the Leased Real Property, including those listed on SCHEDULE 3.12(b), together with the performance right, title and technical interest of Seller in and administrative support to all buildings, improvements, structures, facilities, fixtures and all other appurtenances thereto;
(v) the Contracts listed in SCHEDULE 2.01(a)(v) and all of Seller's purchase orders with vendors, suppliers and manufacturers and unfilled and non-delinquent customer orders and all of Seller's rights thereunder (collectively together with the Leases set forth in SCHEDULE 3.12(b), the "ASSIGNED CONTRACTS");
(vi) all inventories, including all raw materials and supplies, manufactured and purchased parts, packaging materials, goods in-process and finished goods;
(vii) all customer and industry approvals and vendor certifications, including those set forth on SCHEDULE 2.01(a)(vii);
(viii) all samples, prototypes, sample books, showroom displays, , product literature, advertising materials, mockups, brochures, catalogues, including those under developments;
(ix) all accounts, notes, other receivables and other rights to payment of Seller (other than those included in the Excluded Assets) and the full benefit of all security for such accounts, notes or other rights to payment and any claim, remedy or other right related to any of the Businessforegoing;
(x) all cash on hand, cash equivalents, investments (including stock, debt instruments, options and other instruments and securities), bank deposits, lock boxes and lock box receipts and all certificates of deposit and other bank deposits owned or held by Seller;
(xi) all rights and claims in respect of third parties other than those included in or relating solely to the Excluded Assets, including without limitation, warranties, claims, rebates, deposits, prepayments, refunds, causes of action, choses in action, rights of recovery, rights of set-off, and rights of recoupment;
(xii) all insurance benefits, including rights of an insured party in respect of any insurance claims arising from or relating to the following assets Acquired Assets;
(the “Dagger Assets”)xiii) all Governmental Authorizations and all pending applications therefor or renewals thereof, in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant extent transferable to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangementsBuyer, including the contracts and other arrangements, proposals, bids and offers those listed on Schedule 2.1.1 (the “Dagger Engagements”in SCHEDULE 3.12(i);
2.1.2 (xiv) all contracts books, records, ledgers, files, documents, correspondence, lists, specifications, studies, reports, production, licensing, vendor, sourcing, supplier and manufacturer records, product files, technical information, designs, drawings, product notebooks, confidential information, price lists, business, operational and marketing plans and strategies, sales records, product development techniques or plans, customer lists and files (including customer credit and collection information), details of customer relationships, operational methods, historical and financial records and files, and other arrangements pursuant to which Arrow formerly provided goods and/or services relating proprietary information, personnel and labor relations records, environmental control, monitoring and test records, plant cost records, maintenance records and all plans and designs of buildings, structures, fixtures and equipment, including blueprints, building specifications and "as built" plans, in all cases whether in written materials or stored on a computer system or disk;
(xv) all noncompete agreements entered into by anyone with or in favor of Seller; and
(xvi) all goodwill related to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless conduct of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets rights to continue to use the Acquired Assets as materially listed on Schedule 2.1.8 (an ongoing business. Notwithstanding the “Dagger Tangible Assets”);
2.1.9 all foregoing, the transfer of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate the Acquired Assets pursuant to this Agreement shall not include the assumption of any Liability related to the Business Acquired Assets except for the Assumed Liabilities.
(b) The following assets, properties, rights and interests of Seller (collectively, the “Dagger Receivables” "EXCLUDED ASSETS") are excluded from the Acquired Assets and shall remain the “Dagger Work-In-Process,” respectively);
2.1.10 all property of Seller after the Closing: (i) Seller's corporate charter, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, papersstock transfer books, ledgersblank stock certificates, documents and records relating to the Dagger Assets, including all records and other documents relating to the Dagger Engagementsorganization, the Dagger Contractsmaintenance, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations existence of Seller as a corporation; (provided that Arrow may retain copies of such books, papers, ledgers, documents ii) any assets relating to Compensation and records), as well as complete copies of all other books, papers, ledgers, documents and records Benefit Plans; (iii) any items relating to the Dagger Assets.
2.1.11 all inventory and supplies related payment of Taxes for periods prior to the Business;
2.1.12 all Permits relating to Closing; (iv) any Contracts of Seller other than the Business Assigned Contracts (the "EXCLUDED CONTRACTS"); (v) any of the rights of Seller under this Agreement or any of the Dagger Facilities, including the permits Ancillary Agreements; and (vi) any items listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”SCHEDULE 2.01(b).
Appears in 1 contract
Samples: Asset Purchase Agreement (Phoenix Footwear Group Inc)
Purchase and Sale of Assets. Upon and subject to the terms and conditions Except as otherwise provided in SECTION 1.2 hereof, at the ClosingClosing (as such term is defined in SECTION 9.1 hereof), Arrow the Seller shall sell, transfer transfer, convey, assign and assign deliver to Acquisition Subthe Purchaser or its assignee, and Acquisition Sub the Purchaser or its assignee shall purchase and acquire from Arrowaccept delivery of, the following tangible and intangible assets and properties of the Seller (collectively, the "ASSETS"):
(a) all of the Seller's right, title and interest in and to the fixtures, leasehold improvements, signage, lighting, supplies, equipment, machinery and all other tangible and intangible assets utilized and properties of the Seller used in connection with the performance and technical and administrative support operation of the Business, including the following assets material items of which are listed on SCHEDULE 1.1 attached hereto;
(b) all of the “Dagger Assets”Seller's right, title and interest in and to the utility, security and other deposits and prepaid expenses relating to the Business;
(c) all of the Seller's right, title and interest in and to all patents, patent applications, inventions, marks, formulas (patented and unpatented), copyrights, copyright applications, logos, franchises, proprietary knowledge, trade secrets, technical information, quality control data, processes (whether secret or not), methods and other similar know-how or rights used in each case the conduct of the Business, including, but not limited to the areas of retailing, marketing, advertising and personnel training and recruitment;
(d) all of the Seller's right, title and interest in and to all tradenames used in the Business, and all variants thereof and all goodwill associated therewith;
(e) all of the Seller's right, title and interest in and to the Business as a going concern and its franchises, permits, licenses, telephone numbers, customer lists, vendor lists, referral lists and contracts, advertising materials and data, restrictive covenants, choices in action and similar obligations owing to the Seller, together with all books, computer software, files, papers, records and other data of the Seller relating to the Assets and/or used by the Seller in the operation of the Business;
(f) all of the Seller's right, title and interest in and to any and all inventory and to all other property (real and personal) and rights of every kind or nature used by the Seller in the operation of the Business, other than the Excluded Assets described in SECTION 1.2 hereof. It is specifically understood and agreed by the parties hereto that the Purchaser is acquiring and the Seller is selling, all of Seller's right, title, and interest to and in the tangible and intangible assets attributable to or used by the Seller in the Business, other than the Excluded Assets (as defined in SECTION 1.2 hereof). Other than as provided in Section 2.15(a) hereof, all of the Assets transferred hereunder shall be free and clear of all Security Interestsliens, except Permitted Encumbrances:
2.1.1 all contracts encumbrances, claims, mortgages, security interests, pledges, charges and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed restrictions of any kind or nature whatsoever. Except as otherwise set forth on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business1.1 hereof, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses assets located at the Seller's place of business are owned or other agreements for leased by the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger AssetsSeller.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofof this Agreement, at the ClosingClosing (as defined in Section 9.1), Arrow the Seller shall sell, transfer transfer, convey, assign and assign to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arrow, all right, title and interest in and deliver to the assets utilized in connection with Buyer and the performance Buyer shall purchase, acquire and technical and administrative support of accept from the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 Seller all of the leases, subleases, licenses or other agreements for assets of the use of physical locations listed on Schedule 2.1.4 Seller (except only those assets specifically excluded by this Agreement) including without limitation the “Dagger Leases”)following:
(a) All cash and cash equivalents;
2.1.5 all prepaid expenses(b) All inventories (including raw materials, depositswork in process, advancesfinished products, other prepayments parts and related rights paid supplies) either on hand at the facilities of the Seller, in transit thereto or obtained wherever located as of the Closing Date (as defined in Section 9.1) and owned by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist Seller as of the Closing;
2.1.6 all (c) All of the accounts and notes receivable outstanding as of the Closing Date (excluding, however, all notes and other inter-company receivables from Level 8 or any affiliate of Level 8 to the Seller) and all rights in or relating of the Seller in, to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”)and under all invoices and bxxxxxxx;
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixturesd) The equipment, machinery, office motor vehicles, and other equipment tangible personal property of the Seller as of the Closing Date;
(e) The furniture, fixtures and leasehold improvements relating of the Seller as of the Closing Date;
(f) All rights of the Seller in, to and under all contracts, commitments, personal property leases, prepaid third-party licenses and other written agreements (including that certain Lease Agreement dated September 17, 1996 in respect of 300 Xxxx Xxxxxx, Xxxxx, Xxx Xxxxxxxxx (the Business "New Hampshire Lease") and all other tangible assets as materially those leases listed on Schedule 2.1.8 1.1(f) hereto (together with the “Dagger Tangible Assets”)New Hampshire Lease, the "Assumed Leases") but excluding the Excluded Real Property Leases as defined in Section 1.1(z) below) and all purchase and sales orders outstanding as of the Closing Date;
2.1.9 (g) All rights of the Seller in and to all licenses, permits and other authorizations necessary or useful in the operation of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent that such are legally assignable;
(h) All business and accounting records, data, supplier, dealer and customer lists and other proprietary information of the same may be transferredSeller;
(i) All Intellectual Property (as defined in Section 2.13), including without limitation all rights in and to the trademarks, service marks and trade names "ProfitKey," "Profit Key International" and "Rapid Response Manufacturing" and all derivatives thereof and all rights in and to the source code for the software programs "Rapid Response Manufacturing" and "Rapid Response Manufacturing Client Server" and all derivatives thereof;
(j) That certain promissory note of Jxxxxx X. XxXxxxx to Lxxxx 0 dated November 3, 1997 (in place of the promissory note excluded pursuant to Section 1.1(y)); and
2.1.13 all of Arrow’s (k) All other tangible and intangible personal property and prepaid expenses of the Seller. For purposes of this Agreement, the assets related described above in this Section 1.1 shall be referred to collectively as the Business"Assets.
2.1.14 " Notwithstanding the foregoing, the Buyer shall not purchase or acquire the following assets, all of Arrow’s capital stock which shall be excluded from the defined term "Assets" as used herein and other voting interests in are herein referred to as the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”)."Excluded Assets":
Appears in 1 contract
Purchase and Sale of Assets. Upon and subject (a) Subject to the terms and conditions hereofset forth in this Agreement, at the Initial Closing, Seller shall grant, sell, convey, assign, transfer and deliver to Purchaser, and Purchaser shall purchase and accept from Seller, all of Seller's right, title and interest, as of the Initial Closing Date, in and to the following (collectively, the "Initial Closing Assets"):
(i) the Initial Closing Loans, plus Accrued Interest through the Initial Closing Date with respect to such Initial Closing Loans, as well as the collateral for the Initial Closing Loans and any related escrows, the Loan Documents with respect to such Initial Closing Loans and the servicing rights related thereto pursuant to Section 2.6;
(ii) any refunds, credits or other receivables, in each case, of, against or relating to Taxes of, or relating to, the Initial Closing Assets, or the Initial Closing Assumed Liabilities (other than Excluded Taxes);
(iii) all causes of actions and claims held by Seller to the extent related to any of the Initial Closing Assets; and
(iv) the Records in respect of the Initial Closing Assets.
(b) Subject to the terms and conditions set forth in this Agreement, at the Closing, Arrow Seller shall grant, sell, convey, assign, transfer and assign deliver to Acquisition SubPurchaser, and Acquisition Sub Purchaser shall purchase and acquire accept from ArrowSeller, all of Seller's right, title and interest interest, as of the Closing Date, in and to the assets utilized in connection following (collectively, the "Closing Assets" and, together with the performance Initial Closing Assets and technical and administrative support of the Business, including the following assets (the “Dagger Subsequent Closing Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2the "Assets"):
(i) that exist as of the ClosingAll Branch Cash;
2.1.6 all of (ii) the Owned Real Property;
(iii) the Personal Property;
(iv) the Branch Leases;
(v) the Branch Lease Security Deposits;
(vi) the Loans (other than the Initial Closing Loans and the Subsequent Closing Loans, if any), plus Accrued Interest through the Closing Date with respect to such Loans, as well as the collateral for such Loans and any related escrows, the Loan Documents and the servicing rights related thereto pursuant to Section 2.6;
(vii) the Negative Deposits;
(viii) the Safe Deposit Agreements and the keys to the safe deposit boxes;
(ix) any refunds, credits or other receivables, in each case, of, against or relating to intellectual property described in the Ancillary Agreement Taxes of, or relating to intellectual propertyto, the form Closing Assets, the Closing Assumed Liabilities or the operation of which is attached as Exhibit A the Branches (the “Intellectual Property Agreement”other than Excluded Taxes);
2.1.7 (x) the Records (other than in respect of the Initial Closing Assets and the Subsequent Closing Assets, if any);
(xi) all local telephone, fax numbers and post office boxes associated specifically with the Branches; and
(xii) all causes of Arrow’s training materials, speaking materials actions and sales or promotional materials that relate claims held by Seller to the Business;extent related to any of the Closing Assets.
2.1.8 all (c) Purchaser understands and agrees that it is purchasing only the Assets specified in this Agreement, and Purchaser has no interest in or right to any other assets, properties or interests of Arrow’s tangible assets primarily relating to the Business Seller or any of its Affiliates, including any business relationship that Seller or its Affiliates may have with any customer of Seller or its Affiliates (other than those tangible relationships solely in respect of such customers' status as a holder of Deposits) (all assets, properties or interests, other than the Assets, the "Excluded Assets"). For the avoidance of doubt, except as contemplated by Section 7.10, no right to the use of any sign, trade name, trademark or service xxxx, if any, which constitute of Seller or any of its Affiliates, is being sold, and any such right shall be an Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger AssetsAsset.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Hancock Holding Co)
Purchase and Sale of Assets. Upon the terms and subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Seller shall sell, convey, assign and transfer and assign to Acquisition SubPurchaser, and Acquisition Sub Purchaser shall purchase purchase, acquire and acquire accept from ArrowSeller, free and clear of all Liens, other than Permitted Encumbrances, all the right, title and interest of Seller in, to or under the assets set forth below, in each case, other than the Rollover Assets and the Excluded Assets (collectively, the “Purchased Assets”):
(a) the real property located in Huntsville, Alabama with a legal description set forth on Schedule 2.1(a), together with Seller’s right, title and interest in, to and under all buildings, plants, facilities, structures, improvements and fixtures thereon, all easements and rights of way pertaining thereto or accruing to the benefit thereof and all other appurtenances pertaining thereto (collectively, the “Facility”);
(b) all tangible personal property (including machinery, equipment, appliances, furniture, vehicles, computer hardware, tools, accessories, change parts, spare parts and assets utilized in connection with under construction) and interests therein located on or at the performance and technical and administrative support Facility as of the Business, including the following assets Closing (the “Dagger AssetsFacility Personal Property”), in each case free and clear of all Security Interestscase, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed than any tangible personal property set forth on Schedule 2.1.1 2.1(b);
(c) all PEG Products and Raw Materials located on or at the Facility as of the Closing, in each case, other than the Excluded Inventory (collectively, “Dagger EngagementsInventory”);
2.1.2 (d) other than any Excluded Contracts, subject to Section 2.2, all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to Contracts exclusively used in the Businessconduct of the Facility Operations, excluding including, for the contracts and other arrangements listed on Schedule 2.1.2 avoidance of doubt, the Specified Assumed Contracts (the “Dagger Completed EngagementsAssumed Contracts”);
2.1.3 (e) all other contracts relating Governmental Authorizations exclusively used in the conduct of the Facility Operations, to the Business and to which Arrow is a partyextent transferable without violating the terms thereof or applicable Law (collectively, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger LeasesTransferred Governmental Authorizations”);
2.1.5 (f) the Transferred Patents and Transferred Know-How, including all prepaid expensesclaims, depositscauses of action, advancesremedies and rights to sue for and collect damages for past, present and future infringement, misappropriation, or other prepayments violation or impairment thereof and all royalties, fees, income, payments, and other proceeds hereafter due or payable with respect thereof;
(g) the Seller IT Assets set forth on Schedule 2.1(g), in each case, to the extent transferable (the “Transferred Business Systems”);
(h) all warranties from third parties applicable to the Facility, the Facility Personal Property or any Inventory, to the extent transferrable in accordance with their respective terms;
(i) to the extent transferable under applicable Law, all books, records, files and papers containing drawings, formulae, test results and technical and quality records exclusively related rights paid to the Purchased Assets or obtained by Arrow the Facility Operations (other than the Specifically Excluded Records), in each case, whether in hard copy or electronic format, including production reports, service and warranty records, equipment logs, operating guides and manuals, studies, audit reports, quality system documents of the Facility, evaluations, assessment studies or tests, correspondence and other similar documents (but excluding (i) records or files not reasonably separable from documents or databases that do not relate exclusively to the Purchased Assets or the Facility Operations or the transfer of which is not permitted under applicable Laws without the necessary consent and (ii) records and files related to Shared Services) (collectively, the “Facility Books, Documents and Records”); provided, however, that Seller and its Affiliates shall have the right to inspect all Facility Books, Documents and Records in accordance with Section 10.4;
(j) all vendor lists to the extent exclusively related to the Facility Operations (including credit information and historical pricing information to the extent relating to the Businessvendors listed therein), (other than thosein each case, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 (k) all credits, prepaid expenses, deferred charges, advance payments, refunds, security deposits, prepaid items and duties that have been prepaid by Seller pursuant to the Assumed Contracts, in each case, as of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries Reference Time (collectively, the “Dagger Subsidiary SharesPrepaid Expenses”);
(l) the Accounts Receivable of Seller set forth on Schedule 2.1(l) (the “Purchased Accounts Receivable”); and
(m) all rights to claims, refunds, rights of recovery or set off and causes of action against third parties to the extent related to the Purchased Assets described in clauses (a) through (l) of this Section 2.1 or the Assumed Liabilities, including all rights against manufacturers or suppliers of any of the Facility Personal Property or Inventory.
Appears in 1 contract
Purchase and Sale of Assets. Upon the terms and subject to the terms and conditions hereofset forth in this Agreement, at the Closing, Arrow shall Seller agrees to sell, convey, assign, transfer and assign deliver to Acquisition SubPure Cycle, and Acquisition Sub shall purchase Pure Cycle agrees to acquire and acquire accept from ArrowSeller, all of Seller’s right, title and interest in and to the assets utilized in connection with the performance Water Rights and technical and administrative support Property of the BusinessSeller, including the following assets (the “Dagger Assets”), in each case free and clear of all Security InterestsLiens, except Permitted Encumbrancessuch Water Rights and Property being referred to herein as the “Assets,” consisting of the following:
2.1.1 all contracts (a) Seller’s right, title and other arrangements relating interest in and to the Business pursuant Water Rights as represented by shares of stock in the Fort Lyon Canal Company, all of which shares are listed on Schedule 2.1(a);
(b) Seller’s right, title and interest in and to all parcels of real property owned in fee by Seller associated with the Water Rights, all of which Arrow Property is providing goods and/or serviceslisted on Schedule 2.1(b) attached hereto, including legal descriptions, and all proposalsbuildings, bids structures, fixtures and offers other improvements located thereon (other than those owned by the lessees, none of which are required for future such contracts use of the Water Rights), and arrangementsall rights-of-way and similar authorizations;
(c) Seller’s right, title and interest in and to all existing ditches, diversion works, headgates, laterals, and tangible personal property whether or not located on the Property used or usable for the exercise of the Water Rights;
(d) Seller’s right, title and interest in and to all tangible personal property owned or leased by Seller, including all Seller owned or leased machinery, irrigation equipment (including well motors, well pumps, gated pipe, pipe adaptors and valves, siphon tubes, dams, and lift pumps), other equipment, inventory, farm products, crops and livestock, located on the contracts Property;
(e) Seller’s right, title and interest in and to all contracts, options, leases (including oil and gas leases, but subject to the retained 75% interest of Seller in oil and gas interests), policies of insurance (to the extent assignable) (other than rights in respect of Seller’s rights as a named insured, those which are not for casualty or property loss of or related to the Assets, and as to claims arising due to facts occurring on or before the Closing Date) and other arrangementsagreements (excluding any agreements related to Indebtedness) related to the Water Rights, proposalsthe LAWMA Rights, bids and offers listed on Schedule 2.1.1 the Mineral Rights and/or the Property (the “Dagger EngagementsAssumed Contracts”), all of which are identified in Schedule 2.1(e) attached hereto (which schedule identifies separately each Assumed Contract that requires consent of a third-party in order to assign such Assumed Contract to Pure Cycle);
(f) All the capital stock and other securities of Xxxxxxx Enterprises, Inc. (for all purposes of this Agreement, the representations, warranties and covenants of Seller shall include Xxxxxxx Enterprises, Inc. and its assets);
(g) All shares of the Lower Arkansas Water Management Association and any interest therein, together with any contracts, rights, entitlements, obligations and interests arising from or related thereto (the “LAWMA Rights”);
2.1.2 (h) All shares of the Wheat Ridge Mutual Lateral Ditch Company and any interest therein, together with any contracts, rights, entitlements, obligations and interests arising from or related thereto;
(i) All shares of May Valley Water Association and any interest therein, together with any contracts, rights, entitlements, obligations and interests arising from or related thereto; and
(j) An undivided twenty-five percent (25%) interest in Seller’s interest as it may appear in all contracts minerals, oil and gas or other arrangements pursuant to which Arrow formerly provided goods and/or services relating to hydrocarbons on or associated with the BusinessProperty, excluding the contracts including all associated leases, net revenue, royalty, overriding royalty, production payment or mineral interests covered by such leases, operating agreements, and other arrangements listed on Schedule 2.1.2 assignments, if any (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary SharesMineral Rights”).
Appears in 1 contract
Purchase and Sale of Assets. Upon and subject to the terms and conditions hereofherein set --------------------------- forth, Seller hereby agrees to sell, convey, transfer, assign, grant and deliver to Buyer, and Buyer hereby agrees to purchase, acquire and accept from Seller at the ClosingClosing (as hereinafter defined), Arrow shall all of Seller's right, title and interest in and to the Assets, free and clear of all liabilities, obligations, pledges, security interests, liens, claims, defenses, setoffs, equities, encumbrances or charges (collectively, "Encumbrances"), other than those included in the Assumed Liabilities. The Assets include, without limitation, the following:
(a) all goodwill of all of Seller's trade shows, expositions and conferences (the "Events"), including, without limitation, International Fashion Boutique Show, Style Industrie, International Fashion Kids Show, International Fashion Fabric Exhibition and Pret America, including all right to organize, promote, produce and manage the Events;
(b) all goodwill of Accent (the "Publication"), including, without limitation, all right to market, sell, transfer produce and assign distribute the Publication;
(c) all goodwill of the Business and all of Seller's products and services ancillary to Acquisition Subthe Events and/or the Publication (the "Ancillary Products"), including, without limitation, One Source, including the right to represent to third parties that Buyer is the successor to the Business and all right to provide the Ancillary Products;
(d) all lists and databases, in any and all forms and media, of past and prospective exhibitors, attendees, seminar/conference registrants, vendors, sponsors, speakers, press, advertisers and other participants in, subscribers and contributors to, or customers of, the Events, the Publication, the Ancillary Products and/or the Business, all records and correspondence related thereto, and Acquisition Sub shall purchase all rights to manage, use and acquire from Arrowrent the names and addresses contained on such lists;
(e) all work in process with respect to any of the Events to be held after the Closing Date ("Future Events");
(f) all work in process with respect to any issue of the Publication to be published as of a date after the Closing Date (the "Future Publications");
(g) all work in process with respect to any of the Ancillary Products to be delivered after the Closing Date (the "Future Ancillary Products");
(h) all printed matter relating to the Events, the Publication and/or the Ancillary Products in the possession and/or control of Seller, including, without limitation, sales solicitation materials, promotional materials, seminar/conference materials, direct mail materials, labels and Event or Publication stationery;
(i) all correspondence, data, files and records relating to the Events, the Publication, the Ancillary Products, the Assets and/or the Business;
(j) all right, title and interest in copyrights to and/or licenses to use the materials used or generated in the Publication or otherwise in connection with the Business (the "Copyrights"), and all copyright applications and registrations therefor;
(k) all right, title and interest in and to the assets utilized names, service marks, trademarks, designations and logos other than the Excluded Trademarks (as hereinafter defined) currently or previously used in connection with the performance and technical and administrative support of the Business, including the following assets Business (the “Dagger Assets”"Trademarks"), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids trademark applications and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”)registrations therefor;
2.1.2 (l) all contracts copies of back and other arrangements pursuant to which Arrow formerly provided goods current issues of the Publication in the possession and/or services control of Seller or any affiliates;
(m) all inventory and supplies relating to the Business, excluding the contracts including, without limitation, paper, editorial material, photographs, film, artwork, illustrations, printing plates, stationery and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”)production materials;
2.1.3 (n) all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow research materials relating to the Business, (other than thoseincluding, if anywithout limitation, which constitute Excluded Assets under Section 2.2) that exist as of the Closingevent research, readership studies and advertising research;
2.1.6 (o) all of permissions, consents, releases, waivers and licenses related to the rights in or relating to intellectual property described Publication and/or editorial material included in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”)Assets;
2.1.7 (p) all of Arrow’s training materials, speaking materials and sales or promotional materials that relate subscriptions to the BusinessFuture Publications;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2q) except as set forth on Schedule 1.2(d), including all furniture, fixtures, machinery--------------- computers, office communication devices and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to machinery used in connection with the Business;
2.1.12 all Permits relating to (r) the Business or proprietary software (if any) and the Dagger Facilities, including the permits listed on Schedule 2.1.12, non-proprietary software (to the extent assignable) used in connection with the same may be transferredBusiness;
(s) any URLs or websites used in connection with the Business;
(t) the Closing Assets (as hereinafter defined);
(u) accounts receivable (and the proceeds thereof) from unaffiliated third parties generated in connection with Events held prior to the Closing Date ("Seller's Events"), the Publication published as of a date prior to the Closing Date ("Seller's Publications") or in connection with Ancillary Products delivered prior to the Closing Date ("Seller's Ancillary Products");
(v) all of Seller's right, title and interest in and to tentative bookings at the Javits Convention Center; and
2.1.13 (w) all of Arrow’s other tangible Seller's right, title, and intangible assets related interest in and to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries following (collectively, the “Dagger Subsidiary Shares”"Assumed Contracts"): Exhibitor Contracts (as hereinafter defined), the Advertiser Contracts (as hereinafter defined) and all other contracts, agreements, leases, licenses, employment agreements, contributor agreements, consulting agreements, facility contracts, facility date reservations, hotel or housing arrangements, service contracts, sponsorship agreements, list rental agreements, barter arrangements or other arrangements of any nature whether written or oral, to which Seller is a party and which primarily relate to or are necessary for the operation of the Business and/or the conduct of any Future Events, Future Publications or Future Ancillary Products, except for Excluded Contracts (as hereinafter defined).
Appears in 1 contract
Purchase and Sale of Assets. Upon At the Closing (as hereinafter --------------------------- defined), on and subject to the terms and conditions hereofof this Agreement, at the Closing, Arrow Seller shall sell, transfer and assign to Acquisition Subassign, transfer, convey, and Acquisition Sub deliver to Purchaser, and Purchaser shall purchase purchase, acquire, and acquire accept from ArrowSeller, all of the right, title title, and interest of Seller in and to (i) the assets utilized in connection with the performance Business and technical and administrative support of all goodwill related exclusively to the Business, (ii) the name(s) "Xxxxx" and all marks and goodwill associated therewith, whether or not registered (including the following assets name, marks and goodwill associated with Shanghai Xxxxx, Xxxxx de Mexico, S.A. de C.V. (the “Dagger Assets”"Mexican Subsidiary") and CFI Xxxxx which names shall be licensed to Seller following the Effective Time pursuant to the License Agreement attached hereto as Exhibit A (the "License Agreement")), in each case and (iii) all of the assets, properties, and rights of Seller constituting the Business or used by Seller exclusively therein, of every type and description, tangible and intangible, wherever located and whether or not reflected on the books of the Seller (except as may be specifically excluded by this Agreement), free and clear of all Security Interestsliens, except claims, charges, security interests, and encumbrances of any kind or nature other than Permitted EncumbrancesEncumbrances (as hereinafter defined), including, without limitation, the following, as the same shall exist at the Closing Date (as hereinafter defined) and to the extent the same are used exclusively in the Business:
2.1.1 all contracts (a) All real property owned by Seller and other arrangements relating to used exclusively in the Business pursuant to which Arrow is providing goods and/or servicesBusiness, and all proposalsof Seller's right, bids title, and offers for future such contracts interest in the buildings, fixtures, and arrangementsimprovements located thereon, including the contracts together with all water lines, rights of way, uses, licenses, easements, hereditaments, tenements, and other arrangements, proposals, bids appurtenances belonging or appertaining thereto and offers listed on Schedule 2.1.1 any and all assignable warranties of third parties with respect thereto (the “Dagger Engagements”);
2.1.2 "Real Property") and, by assignment of leases, all contracts of Seller's rights in, to, and other arrangements pursuant under any real estate leases (including, without limitation, any assignment of a real estate lease or sublease) to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow Seller is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, party which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights are used exclusively in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets(i) the certain Lease Agreement (the "Illinois Lease Agreement") between Seller and Temperature Equipment Corporation relating to real property located at 000 X. Xxxx Xxxxxx, if anyXxxxxxxxxxxx, which constitute Excluded Assets under Section 2.2Xxxxxxxx (the "Illinois Real Property"), including all furniture(ii) the Lease Agreement (the "Oak Brook Lease Agreement") between Seller and American National Bank and Trust Company of Chicago, fixturesTrustee under Trust No. 113883.03 by Riverside Terrace Partnership, machineryan Illinois General Partnership, office its sole beneficiary and other equipment and leasehold improvements Agent for the property relating to real property located at 0000 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000 (The "Oak Brook Real Property"), and (iii) the Business verbal intra company agreement (the "Pittsburgh Agreement") between Seller and Xxxxx Corporation relating to real property located at 0000 Xxxxxx Xxxxxx, XxXxxxxxxx, XX 00000 (the "Pittsburgh Real Property")), together with all of Seller's right, title, and interest in the buildings, fixtures and improvements, including construction-in- progress, and appurtenances thereto, located on the real property subject to such real estate leases, and any and all other tangible assets as materially listed on Schedule 2.1.8 assignable warranties of third parties with respect thereto (the “Dagger Tangible Assets”"Leased Real Property");
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. Upon Seller shall, and subject does hereby, sell, transfer, convey, assign and deliver to the terms Purchaser, and conditions hereofPurchaser shall, and does hereby, purchase from Seller, at the Closing, Arrow shall sell, transfer and assign to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arrow, Closing all of Seller's right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support all of the Businessassets, including the following assets properties and rights of Seller (the “Dagger Assets”)excluding, however, in each case free the assets, properties and clear rights referred to in Section 2.02) of all Security Interestsevery kind and nature, except Permitted Encumbranceswherever located and whether or not carried or reflected on the books and records of Seller and whether or not carried in the name of Seller, in existence as of the Contract Date or acquired prior to the Closing Date including the following:
2.1.1 (a) all contracts of Seller's bank deposits, cash on hand, certificates of deposit and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 similar assets (the “Dagger Engagements”"Cash Assets");
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 b) all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all Seller's furniture, trade fixtures, motor vehicles, equipment, computers, machinery, tools, dies, jigs, molds, samples, models, office supplies, packaging, other stores, sales and product literature and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries personal property (collectively, the “Dagger Subsidiary Shares”"Equipment") and inventory (collectively, the "Inventory").;
(c) all of Seller's receivables and rights to invoice for work done or goods sold (collectively, the "Receivables");
(d) all of Seller's interest in real property (collectively the "Real Property");
(e) all of Seller's rights under its contracts and other agreements (the "Contracts") to the extent assignable except as otherwise noted in this Agreement; (f) all licenses, rights and approvals granted by legal bodies to Seller to the extent assignable (the "Licenses");
Appears in 1 contract
Purchase and Sale of Assets. Upon and subject On the Closing Date, Sellers will sell to the terms and conditions hereof, at the Closing, Arrow shall sell, transfer and assign to Acquisition SubBuyer, and Acquisition Sub shall Buyer will purchase and acquire from ArrowSellers, all rightof Sellers' rights, title and interest in and to the following assets utilized of Sellers (collectively, the "Assets"):
(a) all equipment, machinery, fixtures, vehicles, computer hardware, furniture and office furnishings used in connection with the performance Business or otherwise located on the Real Property (collectively, the "Equipment"), and technical all supplies, spare parts and administrative support warranties relating to any of the Business, including the following assets Equipment;
(the “Dagger Assets”), in each case free and clear of b) all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts raw materials and other arrangements inventory of the Business including alcoholic beverages (collectively, the "Inventory");
(c) all patents, registered and unregistered trademarks, service marks, logos, corporate and trade names, domain names and registered and common law copyrights, and all applications therefore other than the Retained Intellectual Property Rights, used in connection with the Business (as listed on Schedule 2.16);
(d) all inventions, discoveries, techniques, processes, methods, formulae, designs, computer software, trade secrets, confidential information, know-how and ideas used in connection with the Business (together with the items listed in subsection (c) above, the "Intellectual Property");
(e) all contracts, agreements, leases, licenses, commitments and purchase orders relating to the Business pursuant or any of the Assets (the "Business Agreements");
(f) all permits, licenses, franchises, certificates, authorizations, consents and approvals obtained from or issued by any governmental entity relating to which Arrow is providing goods and/or servicesthe ownership or operation of the Business or any of the Assets, to the extent transferable (collectively, the "Business Permits");
(g) all securities owned by Shareholder issued by, and all proposalsother rights of Shareholder with respect to, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 La Señorita Franchise Company (the “Dagger Engagements”"Business Subsidiary");
2.1.2 (h) all contracts books, records, files, ledgers, drawings, specifications and other arrangements pursuant manuals relating to which Arrow formerly provided goods and/or services the Business or any of the Assets, all advertising materials relating to the Business, excluding regardless of the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”)form in which such information appears;
2.1.3 (i) all goodwill of the Business or associated with any of the Assets;
(j) all xxxxx cash, including change funds and the control disbursement bank account described on Sellers' balance sheet as CONTROL DISB BANCTX;
(k) all other contracts assets of Sellers, tangible or intangible, which are used in connection with, or relate to, the Business; and
(l) all claims, causes of action, choses in action and rights of recovery and setoff relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assetsforegoing.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. Upon the terms and subject to the terms and satisfaction of the conditions hereof, contained in this Agreement at the Initial Closing and each Subsequent Closing, Arrow each of the Required Sellers or the Remaining Sellers, as the case may be, shall sell, assign, convey, transfer and assign deliver or cause to Acquisition Subbe sold, assigned, conveyed, transferred and delivered to the Buyer, and Acquisition Sub the Buyer shall purchase purchase, assume and acquire from Arrowacquire, free and clear of any Lien (except for Permitted Encumbrances), Sellers' Ownership Shares in the properties and assets to the extent constituting, or to the extent used in the operation of, the Facility, including but not limited to the following (the "Acquired Assets"):
(i) the real property which is owned solely by NAEC, easements and other rights in real property as described in Schedule 2.1
(a) (i) and all rights arising out of the ownership thereof or appurtenant thereto, including, without limitation, all related rights of ingress and egress (the "NAEC Real Property"), subject to the Permitted Encumbrances, including the matters set forth in Schedule 2.1(a)(iii)(A), and (ii) the real property (other than the NAEC Real Property), Improvements thereon and Improvements on the NAEC Real Property, easements and other rights in real property described in Schedule 2.1(a)(ii), and all rights arising out of the ownership thereof or appurtenant thereto, including, without limitation, all related rights of ingress and egress (the "Jointly Owned Real Property"), subject to the Permitted Encumbrances, including the matters set forth in Schedule 2.1(a)(iii)(B) (the NAEC Real Property and the Jointly Owned Real Property are referred to together as the "Real Property");
(b) all Nuclear Materials, Spent Nuclear Fuel and other High Level Waste to which the Sellers have title on the Initial Closing Date and each Subsequent Closing Date, all of which are identified on Schedule 2.1(b) (which shall be updated as of the Initial Closing Date and each Subsequent Closing Date) and all Low Level Waste, including without limitation, those items which are identified by type and amount on Schedule 2.1(b) (which shall be updated as of the Initial Closing Date and each Subsequent Closing Date);
(c) all machinery, mobile or otherwise, equipment, computer hardware and software, communications equipment, tools, spare parts, fixtures, furniture, furnishings, and other personal property owned by the Sellers and which is principally used in or principally relates to the operation or maintenance of the Facility, and the Inventories owned by the Sellers which are held at or are in transit from or to the Site, including, without limitation, the items of personal property set forth in Schedule 2.1(c), as well as all applicable warranties and guaranties existing as of such Closing Date from Third Parties relating thereto to the extent such warranties and guaranties are transferable to the Buyer, or to the extent any such items are leased, an assignment of the applicable leases for such items (as well as all applicable warranties and guaranties existing as of such Closing Date from Third Parties relating thereto to the extent transferable to the Buyer);
(d) all assets associated with Seabrook Unit 2, including without limitation, the structures, equipment, components and parts, wherever located, that were purchased for Unit 2 and not sold, transferred or disposed of prior to the Initial Closing, to the extent owned by the Sellers as set forth in Schedule 2.1(d) ("Unit 2");
(e) all of the Sellers' rights with respect to leasehold interests and subleases and rights thereunder to the extent relating to the Real Property, including, without limitation, with respect to the leases or Leased Property, those items which are set forth in Schedule 2.1(e) (the "Leases");
(f) all Permits, which, as of such Closing Date, are transferable by the Sellers to the Buyer by assignment or otherwise (including, without limitation, upon request or application to a Governmental Authority, or which will pass to the Buyer as successor in title to the Acquired Assets by operation of Law), including, without limitation, those Permits set forth in Schedule 2.1(f) (the "Transferable Permits");
(g) except as specifically provided in Section 2.2(h), all rights of the Sellers under the contracts, agreements, purchase orders, the Joint Ownership Agreement, the Disbursing Agent Agreement, the DOE Standard Contract (including all rights to any claims of Sellers related to DOE defaults thereunder), the Nuclear Fuel Contracts, the Transmission Support Agreement, the Memorandum of Understanding with the Town of Seabrook, and personal property leases to the extent relating to the operation of the Facility set forth in Schedule 2.1(g) and, to the extent transferable to the Buyer, all warranties and guaranties existing as of such Closing Date from Third Parties relating to the Acquired Assets (the "Material Contracts");
(h) to the extent permitted by applicable Law, and as promptly as practicable after such Closing and at such locations and in such form (hard copy, magnetic or electronic) as shall be agreed upon, all documents, correspondence, books, records, medical records, operating, safety and maintenance manuals, inspection reports, drawings, models, engineering designs, blueprints, as-built plans, specifications, procedures, studies, reports, quality assurance records, purchasing records and equipment repair data, safety, maintenance or service records relating to the design, construction, licensing, regulation, operation or Decommissioning of the Facility and the other Acquired Assets, wherever located, including, without limitation, all drawings, designs, specifications and other documents owned by a Third Party and licensed to Sellers which are used in or necessary to the licensing, operation or Decommissioning of the Facility;
(i) to the extent permitted by applicable Law, all Acquired Assets Employee Records;
(j) all rights of the Sellers in and to the words "Seabrook Station" and any related or similar trade name, trademark, service mark, xxpyright, corporate name, logo or any part, derivative or combination;
(k) all assignable right, title and interest of the Sellers to the NRC Licenses;
(l) all right, title and interest of the Sellers on the Initial Closing Date and each Subsequent Closing Date in Nuclear Fuel wherever located, as described on Schedule 2.1(l) (which shall be updated as of the Initial Closing Date and each Subsequent Closing Date);
(m) all of the Sellers' right, title and interest in the assets comprising the Decommissioning Funds as of such Closing Date, including, without limitation, those items identified on Schedule 2.1(m), including all income, interest and earnings accrued thereon, together with all related tax accounting and other records;
(n) without limiting the generality of Sections 2.1(a) and 2.1(c), all rights of the Sellers in the property and assets used or usable in providing emergency warning or associated with emergency preparedness as set forth in Schedule 2.1(n)(i) (the "Emergency Preparedness Assets") and all rights of the Sellers under the contracts and agreements associated with such emergency preparedness as set forth in Schedule 2.1(n)(ii) (the "Emergency Preparedness Agreements");
(o) all right, title and interest of the Sellers in the vehicles set forth in Schedule 2.1(o) (the "Vehicles");
(p) all assignable rights, benefits and interest of the Sellers as of such Closing Date under purchase orders, licenses or contracts that are not Emergency Preparedness Agreements, Material Contracts, Intellectual Property Licenses or Leases but that (i) relate to the operation of the Facility, (ii) are identified in writing by the Parties between the Effective Date and such Closing Date, and (iii) are set forth in a schedule to be attached to the Assignment and Assumption Agreement at such Closing (the "Other Assigned Contracts");
(q) all Owned Intellectual Property; provided that the Buyer shall grant to the Sellers an irrevocable, perpetual and fully paid-up license for the Sellers and their agents to use, copy, modify and create derivative works based upon and grant sublicenses to their Affiliates to such Owned Intellectual Property in connection with the operation of Sellers' and their Affiliates' business and the electric power generation stations or plants operated by the Sellers and their Affiliates; provided, further, that each Party shall have no obligation after the relevant Closing Date to provide the other Parties with any updates, maintenance or technical support with respect to such Intellectual Property;
(r) to the extent transferable, all Nuclear Insurance Policies set forth in Schedule 2.1(r) and the rights to proceeds from insurance policies for coverage of Acquired Assets and Assumed Liabilities, including all rights to collect premium refunds made on or after the relevant Closing Date pursuant to the ANI nuclear industry credit rating plan (other than refunds that relate to premiums paid prior to such Closing Date);
(s) all contracts, instruments or other agreements set forth in Schedule 2.1(s) relating to the sale by the Sellers of electric capacity, energy or ancillary products or services from the Facility under wholesale rates or otherwise subject to regulation by the FERC;
(t) the Sellers' claims, rights or causes of action against any Third Parties to the extent arising out of or relating to Sellers' right, title and interest in and to any of the assets utilized Acquired Assets or the Assumed Liabilities or any portion thereof, whether received as a payment or credit against future liabilities, including, without limitation, insurance proceeds, condemnation awards and cash payments under warranties covering the Acquired Assets to the extent such payments relate to Assumed Liabilities or the Acquired Assets;
(u) the Sellers' interests in connection the escrow account established in accordance with the performance and technical and administrative support Memorandum of Understanding with the Town of Seabrook;
(v) all other assets of the BusinessSellers to the extent constituting, including or used or held for use in the following assets operation of, the Facility, as set forth on Schedule 2.1(v), as amended by the Parties pursuant to Section 5.6 (the “Dagger "Other Related Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”");
2.1.2 (w) all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to emission reduction credits owned by the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials Sellers that relate to the Businessoperation of the Facility, as set forth in Schedule 2.1(w);
2.1.8 (x) an assignment of all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assetsIntellectual Property Licenses, if any, which constitute Excluded Assets under Section 2.2as set forth in Schedule 2.1(x), including all furnitureany related maintenance agreements for Licensed Intellectual Property, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets extent assignable to the Buyer on commercially reasonable terms, as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”described in Section 5.2(b)(iv);
2.1.9 (y) the property comprising or constituting the 345 kV Substation located at the Site (notwithstanding how such properties are treated for regulatory or accounting purposes and whether such assets are real or personal property) as set forth in Schedule 2.1(y) and as shown in the drawing referenced therein, as well as all of Arrow’s accounts receivable Permits and unbilled accounts receivable and work-in-process contracts that relate to the Business 345 kV Substation;
(z) with respect to the “Dagger Receivables” portion of UI's Ownership Share which consists of a leasehold interest in the Undivided Interest, UI agrees to exercise its rights under Section 14(a) and (b) of the Facility Lease and the “Dagger Work-In-Process,” respectively);
2.1.10 all booksTermination Agreement to cause the Facility Lease to be terminated and to cause the Owner Trustee to sell, papersassign, ledgersconvey, documents transfer and records relating deliver the Undivided Interest to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferredBuyer; and
2.1.13 all of Arrow’s (aa) any other tangible and intangible properties or assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests constituting or used in the Dagger Subsidiaries (collectively, operation of the “Dagger Subsidiary Shares”)Facility that are not specifically identified in Section 2.2 hereof.
Appears in 1 contract
Purchase and Sale of Assets. Upon Seller agrees to sell and transfer to Buyer, and Buyer agrees to purchase from Seller at the Closing, subject to and upon the terms and conditions hereofcontained herein, at the Closing, Arrow shall sell, transfer free and assign to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arrowclear of any Lien or Security Interest, all of Seller's right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support of the Businessall Seller Assets wherever situated, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all Closing Date including without limitation the following properties and assets, except to the extent that any such properties and assets form a part of the rights Excluded Assets as provided in or relating to intellectual property described in the Ancillary Agreement relating to intellectual propertySection 2(b) (collectively, the form "Acquired Assets"):
(i) All customer, distribution, supplier and mailing lists of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate Seller relating to the Business;
2.1.8 (ii) All cash, bank accounts, accounts receivable, orders for Services and all claims, deposits, prepayments, refunds, causes of Arrow’s tangible assets primarily action, rights of recovery, rights of setoff and rights of recoupment relating to the Seller Assets or the Business, including without limitation those listed on Schedule 2(a)(i);
(iii) All contracts, instruments or other agreements relating to Seller Assets or the Business listed on Schedule 2(a)(iii) (the "Contracts"), all contracts or orders for supplies, components, parts, goods, promotional material, services or other items used in connection with the Business or relating to Seller Assets, but only to the extent such contracts or orders are described in summary form in Schedule 2(a)(iii) and, all warranty rights and claims against third parties relating to or arising under any of the Seller Assets;
(iv) All licenses (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2Intellectual Property), permits, orders, registrations, certificates, variances, approvals and franchises primarily pertaining to or used primarily in connection with Seller Assets or the Business or any pending applications relating to any of the foregoing, including without limitation all furnituregovernmental permits, fixtureslicenses, machineryauthorizations, office approvals and other consents (the "Permits");
(v) All Intellectual Property, goodwill associated therewith and with the Business, licenses and sublicenses granted in respect thereto and rights thereunder, remedies against infringements thereof and rights to protection of interest therein, including without limitation the Intellectual Property described in Schedule 2(a)(v) hereto; and
(vi) All business and financial records, books, ledgers, files, plans, documents, lists, drawings, creative materials, advertising and promotional materials, marketing materials, studies, reports, equipment and leasehold improvements repair, maintenance or service records exclusively relating to the Business Seller Assets, whether written or electronically stored or otherwise recorded.
(vii) All equipment, inventory, vehicles, fixed assets and all other tangible assets as materially listed on Schedule 2.1.8 (used in the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all booksBusiness, papers, ledgers, documents and records relating to the Dagger Assetswherever located, including all records and documents relating leasehold improvements to facilities subject to leases included among the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent such leasehold improvements are owned by the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the BusinessSeller.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. Upon the terms and subject to the terms and conditions hereofof this Agreement, at the Closing, Arrow shall Seller hereby agrees to sell, transfer assign, transfer, convey and assign deliver to Acquisition SubBuyer, and Acquisition Sub shall purchase Buyer, in reliance on the representations, warranties and covenants of Seller contained herein, hereby agrees to purchase, acquire and accept from ArrowSeller, free and clear of any Liens other than the Permitted Liens, all of Seller’s right, title and interest in and to each of the assets utilized following, but expressly excluding the Excluded Assets (the “Purchased Assets”):
(a) all Inventory (including any Inventory paid for but not yet delivered to or received by a Third Party on behalf of Seller and Inventory held by any Third Party), including the inventory set forth on Schedule 2.1(a) (the “Purchased Inventory”);
(b) all Intellectual Property Assets, including the Intellectual Property set forth on Schedule 2.1(b) or required to be listed on Schedule 4.11(a);
(c) all Intellectual Property Agreements and all rights thereunder, including the Intellectual Property Agreements set forth on Schedule 2.1(c) (collectively, the “Purchased IP Contracts”);
(d) all Collateral related to the Brands, current or planned Products, or Former Products, including all Collateral set forth on Schedule 2.1(d);
(e) all books, records, ledgers and files or other similar information of Seller (in any form or medium) related to, used or held for use in connection with the performance and technical and administrative support of the BusinessBrands, current or planned Products, or Former Products, including all customer lists, vendor lists, correspondence, mailing lists, revenue records, invoices, advertising materials, brochures, records of operation, standard forms of documents, manuals of operations or business procedures, photographs, blueprints, research files and materials, data books, Intellectual Property disclosures and information, media materials and plates, accounting records, litigation files, Permits and any documentation related thereto, any documentation related to current or planned Products or Former Products within the following assets Brands and any documentation involving Governmental Entities (the “Dagger Assets”but excluding Seller Corporate Records), in each case free whether or not physically located on any of the physical premises of Seller;
(f) all Permits and clear all rights and incidents of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating interest therein related to the Business pursuant to which Arrow is providing goods and/or servicesBrands, and all proposalscurrent or planned Products, bids and offers for future such contracts and arrangementsor Former Products, including the contracts and other arrangements, proposals, bids and offers listed permits set forth on Schedule 2.1.1 (the “Dagger Engagements”2.1(f);
2.1.2 (g) all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Businesscredits, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a partycash reserves, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, advance payments, security deposits, advances, escrows and other prepayments and prepaid items of Seller arising from or related rights paid or obtained by Arrow relating to the BusinessBrands, (other than thosecurrent or planned Products, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closingor Former Products;
2.1.6 (h) all of the rights in Claims against any Person arising from or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate related to the Business;
2.1.8 Brands, current or planned Products, or Former Products, whether accruing before, on or after the Closing Date, including: (i) all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets rights under Section 2.2)any Purchased IP Contract, including all furniturerights to receive payment for products sold and services rendered thereunder, fixturesto receive goods or services thereunder, machinery, office to assert Claims and to take other equipment and leasehold improvements relating to the Business and rightful actions in respect of Defaults thereof; (ii) all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all rights under or in respect of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger any Intellectual Property Assets, including all records rights to and documents relating Claims for Damages, restitution and injunctive relief for past, present and future infringement, dilution, misappropriation, unlawful imitation, misuse or Default, with the right but no obligation to sxx for such legal and equitable relief, and to collect, or otherwise recover, any such Damages, all rights of priority and protection of interests therein under the Dagger EngagementsLaws of any jurisdiction; and all rights to receive all royalties, fees, income, payments and other proceeds now or hereafter due or payable with respect to any and all of the Dagger Contractsforegoing and (iii) all rights (including rights to proceeds) under all guarantees, the Dagger Receivables, the Dagger Work-In-Process warranties and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies indemnities arising from or related to the BusinessBrands, current or planned Products, or Former Products, whether known or unknown, contingent or non-contingent;
2.1.12 (i) all Permits relating to goodwill and other intangible assets associated with the Business Brands, current or the Dagger Facilitiesplanned Products, or Former Products, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible goodwill and intangible assets going concern value arising from or related to the Business.Brands, current or planned Products, or Former Products;
2.1.14 (j) all of Arrow’s capital stock Products ordered by Seller prior to the Closing Date but not paid for and other voting interests in not yet received by Seller prior to the Dagger Subsidiaries Closing Date under the purchase orders set forth on Schedule 4.11(k)(i) (collectively, the “Dagger Subsidiary SharesOpen Purchase Orders”);
(k) all parts, materials, molds, patterns, tools, tooling and all other tangible personal property owned or leased by Seller and used, held for use or intended for use in connection with the Brands or current or planned Products or Former Products, including such items set forth on Schedule 2.1(k) (the “Purchased Equipment”), together with any express or implied warranty by the manufacturers or sellers or lessors of any item or component part thereof and all maintenance records and other Documents relating thereto in the possession or control of Seller or any of its contract manufacturers (“Contract Manufacturers”) as of the date of this Agreement; and
(l) all assets set forth on Schedule 2.1(l).
Appears in 1 contract
Purchase and Sale of Assets. Upon the terms and subject to the terms and satisfaction of the conditions hereofcontained in this Agreement, at the Closing, Arrow the Selling Entities shall sell, assign, convey, transfer and assign deliver to Acquisition Subthe Buyer and/or one or more Buyer Designees, and Acquisition Sub shall the Buyer and/or such Buyer Designees shall, by the Buyer’s and/or such Buyer Designees’ payment of the Purchase Price, purchase and acquire from Arrowthe Selling Entities, all of the Selling Entities’ right, title and interest, as of the Closing, free and clear of all Encumbrances (other than Permitted Encumbrances, except in the case of Equity Interests), in and to all of the properties, rights, interests and other tangible and intangible assets of the Selling Entities (wherever located and whether or not required to be reflected on a balance sheet prepared in accordance with GAAP), as of the Closing, in each case, to the extent related to the Business (collectively, the “Purchased Assets”), including any assets acquired by the Selling Entities, to the extent related to the Business, after the date hereof but prior to the Closing; provided, however, that the Purchased Assets shall not include any Excluded Assets. Without limiting the generality of the foregoing, the Purchased Assets shall include the following (except to the extent listed or otherwise included as an Excluded Asset):
(a) all Store Cash of the Selling Entities as of the Closing;
(b) (i) all Accounts Receivable and Credit Card Receivables of the Selling Entities as of the Closing, together with all right, title and interest in (and all proceeds therefrom) of the Selling Entities arising out of, or related to, the Visa/Mastercard Litigation (except for 100% of the first $1 million and 50% of the next $4 million of proceeds (if any) received on account thereof, which shall be payable to the assets utilized GUC Trust (as defined in connection the Plan) in accordance with the performance Plan) and technical and administrative support (ii) all accounts receivable of the BusinessSelling Entities as of the Closing related to the workers’ compensation programs and arrangements of the Business and the Divested Businesses;
(c) all Inventory, supplies, materials and spare parts of the Selling Entities as of the Closing, including all rights of the following Selling Entities to receive such Inventory, supplies, materials and spare parts that are on order;
(d) without duplication of the above, all royalties, advances, prepaid assets (the “Dagger Assets”excluding prepaid income Taxes), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts security and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or servicesdeposits, and all proposals, bids and offers for future such contracts and arrangements, including the contracts prepayments and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services current assets relating to the Business, the Assumed Agreements and the Assumed Real Property Leases, in each case of the Selling Entities as of the Closing (but excluding all interests in the contracts Excluded Insurance Policies and other arrangements listed all prepaid assets relating to Contracts that are not Assumed Agreements or Assumed Real Property Leases as of the Closing and do not become Assumed Agreements or Assumed Real Property Leases after the Closing pursuant to this Agreement);
(i) all employment agreements set forth on Schedule 2.1.2 2.1(e) (the “Dagger Completed EngagementsAssumed Employment Agreements”) and (ii) all Non-Real Property Contracts that are to be assumed and assigned to the Buyer and/or one or more Buyer Designees, as determined prior to the applicable Designation Deadline by the Buyer’s written notice(s) pursuant to Section 2.5 ((i) and (ii), collectively, the “Assumed Agreements”);
2.1.3 (f) all other contracts relating Real Property Leases that are to be assumed and assigned to the Business and Buyer and/or one or more Buyer Designees, as determined prior to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts the applicable Designation Deadline by the Buyer’s written notice(s) pursuant to Section 2.5 (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Assumed Real Property Leases”);
2.1.5 (g) (i) all prepaid expensesCustomer Data and (ii) all other Seller IP (including each item of Registered IP set forth on Schedule 5.10(a)), deposits, advances, other prepayments and including Seller IP related rights paid or obtained by Arrow relating to the BusinessFashion Bug, Casual Corner and Petite Sophisticate brands;
(h) all open purchase orders with customers and suppliers;
(i) all items of machinery, equipment, supplies, furniture, fixtures, leasehold improvements (to the extent of the Selling Entities’ rights to any leasehold improvements under the Assumed Real Property Leases) and other than those, if any, which constitute Excluded Assets under Section 2.2) that exist tangible personal property and fixed assets owned by the Selling Entities as of the Closing;
2.1.6 (j) all books, records, information, files, data and plans (whether written, electronic or in any other medium), advertising and promotional materials and similar items of the rights in or relating to intellectual property Selling Entities as of the Closing (except as otherwise described in Section 2.2), including customer and supplier lists, mailing lists, sales and promotional literature, other sales related materials related to the Ancillary Agreement relating Business and, to intellectual propertythe extent not prohibited under applicable Law, all files and data related to the Transferred Employees (collectively, the form of which is attached as Exhibit A (the “Intellectual Property AgreementDocumentary Materials”);
2.1.7 (k) all real property owned by the Selling Entities (collectively, the “Owned Real Property”) listed on Schedule 2.1(k), it being agreed and understood that notwithstanding any provision in this Agreement to the contrary, the owned real property included in the Purchased Assets shall include the Selling Entities’ (i) distribution center in Greencastle, IN, (ii) distribution center and office space in Pataskala, OH, (iii) office building in Duluth, MN, and (iv) xxxxxx xxxxxxxx xxx xxxxxx xxx xx Xxx Xxxxxx, XX;
(l) all of Arrow’s training materialsthe stock or other equity or other ownership interests owned by the Selling Entities in the Acquired Subsidiaries (the “Equity Interests”);
(m) all claims (including claims for past infringement or misappropriation of Seller IP to be conveyed hereby) and causes of action (other than, speaking materials in each case, to the extent related to Excluded Assets or Excluded Liabilities) of the Selling Entities as of the Closing against Persons other than the Selling Entities (regardless of whether or not such claims and sales causes of action have been asserted by the Selling Entities) and all rights of indemnity, warranty rights, rights of contribution, rights to refunds, rights of reimbursement and other rights of recovery, including rights to insurance proceeds, possessed by the Selling Entities as of the Closing (regardless of whether such rights are currently exercisable) to the extent related to the Purchased Assets, excluding for the avoidance of doubt, any rights, claims or promotional materials that relate causes of action to the extent related to the Avoidance Actions and any rights, claims or causes of action to the extent related to any Excluded Assets or Excluded Liabilities;
(n) all goodwill associated with the Business or the Purchased Assets, including all goodwill associated with the Seller IP to be conveyed hereby, all rights to xxx or recover and retain damages, costs and attorney fees for past, present and future infringement, misappropriation or other violation of the Seller IP to be conveyed hereby, and all rights under any confidentiality agreements executed by any third party for the benefit of any of the Selling Entities to the extent relating to the Business;
2.1.8 (o) all rights of Arrow’s tangible assets primarily relating the Selling Entities under non-disclosure or confidentiality, non-compete, or non-solicitation agreements with Current Employees, Former Employees or current or former directors, consultants, independent contractors and agents of any of the Selling Entities or any of their Affiliates or with third parties to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits extent relating to the Business or the Dagger FacilitiesPurchased Assets (or any portion thereof); provided that to the extent any such rights exist pursuant to a Contract, including such Contract must be an Assumed Agreement;
(p) all of the permits listed on Schedule 2.1.12rights and benefits accruing under all Permits (to the extent transferable), all deposits and prepaid expenses (excluding prepaid income Taxes) held by third parties and/or, to the extent transferable, any Governmental Authority and, to the same may extent transferable, all bank and deposit accounts used for Store Cash;
(q) except for any such amounts required to be transferredpaid to any other Person under any Order of the Bankruptcy Court relating to any debtor-in-possession financing obtained by the Selling Entities, the amount of, and all rights to any, insurance proceeds received by any of the Selling Entities (other than any amounts or rights to any insurance proceeds received under any Excluded Insurance Policy) after the date hereof in respect of (i) the loss, destruction or condemnation of any Purchased Assets of a type set forth in Section 2.1(c), (h), (i), (j), or (k), occurring prior to, on or after the Closing or (ii) any Assumed Liabilities;
(r) any rights, demands, claims, credits, allowances, rebates (including any vendor or supplier rebates), or rights of setoff (other than against the Selling Entities) arising out of or relating to any of the Purchased Assets as of the Closing (but excluding all interests in the Excluded Insurance Policies);
(s) all prepaid and deferred items (including prepaid real property tax but excluding prepaid income Taxes) that relate to the Business or the Purchased Assets as of the Closing, including all prepaid rentals and unbilled charges, fees and deposits (but excluding all interests in the Excluded Insurance Policies and Avoidance Actions);
(t) to the extent transferable, all current and prior insurance policies of any of the Selling Entities that relate to the Business, the Purchased Assets or Assumed Liabilities, and all rights and benefits of any of the Selling Entities of any nature (except for any rights to insurance recoveries thereunder required to be paid to other Persons under any Order of the Bankruptcy Court relating to any debtor-in-possession financing obtained by the Selling Entities) with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries, but excluding all interests in the Excluded Insurance Policies;
(u) each Seller Benefit Plan, and any right, title or interest in any assets of or relating thereto (except to the extent such Seller Benefit Plan relates to equity or equity-based awards of the Seller Entities or any of their Affiliates, which shall be an Excluded Asset and Excluded Liability);
(v) any rights, claims or causes of action as of the Closing of any Selling Entity relating to or arising against suppliers, vendors, merchants, manufacturers, counterparties to leases, counterparties to licenses, and counterparties to any Assumed Agreement or Assumed Real Property Lease in respect of the assets, properties, conduct of business or operations of such Selling Entity arising out of events occurring on or prior to the Closing Date, excluding, subject to Section 7.16(b), any rights, claims or causes of action that relate to the Avoidance Actions and any rights, claims or causes of action that relate to any Excluded Assets or Excluded Liabilities; and
2.1.13 (w) all of Arrow’s other tangible and intangible assets that are related to or used in connection with the BusinessBusiness and that are owned by any Selling Entity as of the Closing.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Asset Purchase Agreement (Ascena Retail Group, Inc.)
Purchase and Sale of Assets. Upon the terms and subject to the terms and conditions hereofset forth in this Agreement, at the ClosingClosing Seller shall convey, Arrow shall sellassign, transfer and assign deliver to Acquisition SubBuyer and Buyer shall acquire and accept from Seller, free and Acquisition Sub shall purchase and acquire from Arrowclear of all Liens (other than Permitted Liens), all rightof the assets, title properties and interest rights of Seller of every kind, nature and description, corporeal or incorporeal, tangible or intangible, used in and to the assets utilized in connection with the performance and technical and administrative support of the Business, including but excluding the following assets Excluded Assets (collectively, excluding the Excluded Assets, the "Acquired Assets"). The Acquired Assets shall include, but not be limited to, the following:
(a) Except as set forth in the Owned Terminals Side Agreement, the real property constituting the Terminal Sites set forth on Schedule 2.1(a), together with all buildings, structures and improvements located thereon and fixtures attached thereto and all rights of way, privileges, easements and servitudes attendant thereto (the “Dagger Assets”"Real Property");
(b) The real estate leases (each, a "Premises Lease") constituting the Terminal Sites set forth on Schedule 2.1(b) (collectively, the "Leased Premises"), in each case free to be transferred by an assignment and clear assumption of all Security Interestslease agreement;
(c) The equipment, except Permitted Encumbrances:
2.1.1 all contracts vehicles and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed Vessels set forth on Schedule 2.1.1 2.1(c) (collectively, the “Dagger Engagements”"Equipment and Vessels");
2.1.2 (d) The personal property charters, contracts of affreightment and/or leases set forth on Schedule 2.1(d) (each, a "Equipment/Vessel Lease") with respect to the property described therein and the property set forth on Schedule 2.1(d) (collectively, the "Leased Equipment and Vessels"), in each case to be transferred by an assignment and assumption of lease agreement;
(e) All of Seller's assets located on the Terminal Sites (other than the Marine Xxxxx), including, but not limited to machinery, furniture, tools, spare parts, supplies, fuel, lubricants, computers, printers, other shop and office equipment, mobile equipment and other personal property;
(f) All claims and rights of the Seller under all other agreements, contracts, leases, and other contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to commitments of the Seller used in the Business, excluding the contracts and other arrangements listed each of which is more particularly described on Schedule 2.1.2 2.1(f) (collectively, the “Dagger Completed Engagements”"Contracts") other than any such Contracts set forth on Schedule 2.2(l);
2.1.3 all other contracts relating to the Business and to which Arrow is a party(g) All of Seller's licenses, including employment permits, consents, use agreements, nondisclosure agreementsapprovals, teaming agreementsauthorizations and certificates of any regulatory, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses administrative or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid governmental agency or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights body used in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed claims and rights of Seller thereunder (the "Licenses and Permits") and Seller's Environmental Permits, all of which collectively are more particularly described on Schedule 2.1.8 (the “Dagger Tangible Assets”2.1(g);
2.1.9 (h) Seller's patents, know-how and technology used in the Business, all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed which is set forth on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).2.1
Appears in 1 contract
Samples: Purchase and Sale Agreement (McMoran Exploration Co /De/)
Purchase and Sale of Assets. Upon Seller agrees to, and subject to cause the terms and conditions hereofother Seller Entities to, at the Closing, Arrow shall sell, transfer transfer, assign and assign convey to Acquisition SubBuyer, free and clear of all Encumbrances other than Permitted Encumbrances, and Acquisition Sub shall Buyer agrees to purchase and acquire from Arrowthe Seller Entities, on the Closing Date, all of the Seller Entities’ right, title and interest to and in the following (the “Acquired Assets”):
(a) All Finished Goods and to Service Equipment-in-Field owned by any Seller Entity as of the assets utilized Closing Date;
(i) the Trademarks and Patents set forth on Schedule 2.1(b) and (ii) all other Intellectual Property used solely in connection with the performance manufacture, sale and technical and administrative support use of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries Critical Care Products (collectively, the “Dagger Subsidiary SharesAssigned Intellectual Property”);
(c) All Regulatory Approvals owned and controlled by any Seller Entity, other than those that are identified as not assignable as set forth on Schedule 2.1(c);
(d) All books, records, files and papers of any Seller Entity, whether in hard copy or electronic format, (i) that consist of customer lists and customer information relating primarily to the Critical Care Products and (ii) that relate primarily to the Assigned Intellectual Property or the sale and use of the Critical Care Products, provided, that, (x) the Seller Entities may redact from such books, records, files and papers any information that does not relate to the Critical Care Products, and (y) such books, records, files and papers of the Seller Entities shall not include books, records, files and papers of the Seller Entities relating to (i) the sale or potential sale of the Acquired Assets, including pursuant to this Agreement or (ii) employees of the Seller Entities (without limiting Seller’s obligations to provide certain information to Buyer pursuant to Section 6.7);
(e) All Contracts listed on Schedule 2.1(e) and purchase and sale orders referred to in Section 2.5(c); and
(f) All Ex-U.S. Contracts but only to the extent relating to the Critical Care Products.
Appears in 1 contract
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofof this Agreement, at the ClosingClosing (as defined in Section 1.8), Arrow the Seller shall sell, transfer and assign deliver to Acquisition Subthe Buyer, and Acquisition Sub Buyer shall purchase and acquire accept from Arrowthe Seller, all of the Seller's right, title and interest interest, as of the Closing Date, in and to all of the assets utilized of the Seller (other than the Excluded Assets (as defined below)) (collectively, the "Purchased Assets"), including, without limitation,
(a) the trademarks and patents (and applications with respect to any of the foregoing) listed on Schedule 1.1(a);
(b) the trade names, intellectual property and other intangible rights of whatever nature listed on Schedule 1.1(b);
(c) the machinery, equipment, supplies and furniture owned by the Seller ("FF&E") listed on Schedule 1.1(c) (the "Tangible Assets");
(d) the agreements and contracts of the Seller listed on Schedule 2.11 or Schedule 1.1(d) (the "Contracts"), subject to the provisions of Sections 1.2(b) and 4.2;
(e) intentionally omitted;
(f) the deposits or other prepayments made by the Seller in connection with the performance and technical and administrative support existing Contracts as of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers Closing Date listed on Schedule 2.1.1 1.1(f) (the “Dagger Engagements”"Deposits");
2.1.2 (g) all contracts supplier lists, sales files, business development information, databases, price lists and other arrangements pursuant to which Arrow formerly provided goods and/or services relating pricing records and schedules, accounting records, rate records, sales literature, technical literature, information and know-how, and general intangibles, licenses (to the Businessextent transferable), excluding trade association or other memberships (to the contracts extent transferable), and any other arrangements listed on Schedule 2.1.2 (books, documents, instruments and records used by the “Dagger Completed Engagements”)Seller;
2.1.3 all other contracts relating to (h) a copy of the Business customer lists of the Seller, provided that the Buyer acknowledges and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (agrees that the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment Seller shall retain its ownership of such Dagger Contractscustomer lists and may transfer rights in such lists to third parties;
2.1.4 (i) all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable billed and unbilled accounts receivable and work-in-process that relate to of the Business Seller, as of the Closing Date (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively"Accounts Receivable");
2.1.10 (j) all books, papers, ledgers, documents and records relating to goodwill of the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the BusinessSeller;
2.1.12 (k) all Permits relating to of the Business or issued and outstanding capital stock of the Dagger Facilities, including subsidiaries of the permits Seller listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries 1.1 (k) hereof (collectively, the “Dagger Subsidiary Shares”"Subsidiaries"); and
(l) all other assets of the Seller except the Excluded Assets.
(a) to the Buyer.
Appears in 1 contract
Purchase and Sale of Assets. Upon Subject to Section 2.02 and subject to the terms and conditions hereofset forth herein, at on the Closingdate of this Agreement, Arrow each of the Sellers shall sell, transfer assign, transfer, convey and assign deliver to Acquisition Subthe Buyers, and Acquisition Sub the Buyers shall purchase from the Sellers, free and acquire from Arrowclear of any Encumbrances other than Permitted Encumbrances, all of the Sellers’ right, title and interest in, to and under the assets, properties and rights wherever located (including, in and transit or in the possession of any third party) that are used, held for use or intended to be used in, or arise from or relate to the assets utilized Business (collectively, the “Purchased Assets”), including the following:
(a) cash and cash equivalents held for use in or arising from the Business;
(b) in each case arising from or relating to the Business (i) all trade and credit card accounts receivable and other rights to payment held by the Sellers, and the full benefit of all security for such accounts or rights to payment, including all trade and credit card accounts receivable representing amounts receivable in respect of goods shipped or products sold or services rendered to customers of the Sellers, (ii) all other accounts or notes receivable held by the Sellers and the full benefit of all security for such accounts or notes and (iii) any claim, remedy or other right related to any of the foregoing (collectively, the “Accounts Receivable”);
(c) all inventories, finished goods, raw materials, work in progress, packaging, supplies, parts, packaging materials and other inventories, including all inventories on consignment, bailment or other arrangement (whether located at any retail store, transload shipment site, consignment warehouse, or other offsite location or in transit in any railcar, truck, boat, airplane or other mode of transportation) (“Inventory”) held in connection with the performance Business;
(d) all Contracts and technical and administrative support Intellectual Property Licenses set forth in Section 2.01(d) of the Business, including the following assets Disclosure Schedules (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger EngagementsAssigned Contracts”);
2.1.2 (e) all contracts Intellectual Property Assets including the Intellectual Property set forth in Section 2.01(e) of the Disclosure Schedules;
(f) all furniture, furnishings, fixtures, equipment, machinery, tools, vehicles, office equipment, software, models, supplies, computers, telephones, molds/tooling and other arrangements tangible personal property set forth in Section 2.01(f) of the Disclosure Schedules;
(g) all of the Sellers’ leasehold interests in the Leased Real Property;
(h) all Permits that are held by the Sellers and required for the conduct of the Business as conducted on the date hereof or for the ownership and use of the Purchased Assets, including those listed in Section 4.17(b) of the Disclosure Schedules (to the extent such Permits can be transferred to the Buyers pursuant to which Arrow formerly provided goods and/or services their terms and any applicable Laws);
(i) all rights to any Actions of any nature available to or being pursued by the Sellers to the extent relating to the Business, excluding the contracts and other arrangements Purchased Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise, including those listed on Schedule 2.1.2 (in Section 2.01(i) of the “Dagger Completed Engagements”)Disclosure Schedules;
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 j) all prepaid expenses, depositscredits, advancesadvance payments, other fees (including processing fees), claims, security, refunds, rebates, promotional allowances, discounts, costs (including prepaid website and software costs), rights of recovery, rights of set-off, rights of recoupment, deposits (including deposits and prepayments on Inventory purchases), charges and related sums arising from or relating to the Business;
(k) all of the Sellers’ rights paid under warranties, indemnities and all similar rights in favor of any Seller in respect of any Purchased Assets or obtained by Arrow any Assumed Liability;
(l) all insurance benefits, including rights and proceeds, arising from or relating to the Business, (other than those, if any, which constitute Excluded the Purchased Assets under Section 2.2) that exist as of or the ClosingAssumed Liabilities;
2.1.6 all of (m) to the rights in or extent relating to intellectual property described in the Ancillary Agreement relating to intellectual propertyBusiness, the form originals, copies or digital media of which is attached as Exhibit A all books and records, including (i) books of account, ledgers and general, financial and accounting records (the “Intellectual Property AgreementFinancial Records”) and (ii) employee records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files (including all protocols, investigations, brochures, reports, safety reports, safety data, raw data, source documents, files and summaries);
2.1.7 , records and data (including all correspondence with any Governmental Authority), written notes, standard operating procedures, logs, studies, sales material and records (including pricing history, total sales, terms and conditions of Arrow’s training materialssale, speaking materials sales and sales or pricing policies and practices), strategic plans, internal financial statements, marketing and promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily surveys, material and research and intellectual property files relating to the Business (other than those tangible assetsIntellectual Property Assets and the Intellectual Property Licenses, if anymanuals, which constitute Excluded Assets under Section 2.2)product drawings, including all furnitureblueprints and schematics, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 general business, technical, financial and technical files, invoices, documents (including market research reports, commercial plans and strategic assessments and, in all cases, in any form or medium) (the “Dagger Tangible AssetsOther Books and Records” and together with the Financial Records, the “Books and Records”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (; provided that Arrow may the Sellers shall be permitted to retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferredFinancial Records; and
2.1.13 (n) all goodwill and the going concern value of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. Upon 4.1.1 On the Closing Date and subject to the terms of this Agreement, the Buyer shall purchase from the Seller, and conditions hereof, at the Closing, Arrow Seller shall sell, transfer and assign to Acquisition Subassign, transfer, convey, and Acquisition Sub shall purchase and acquire from Arrowdeliver to the Buyer, all rightof the assets and properties of the Seller used or held for use by Seller in connection with Seller’s business (the “Business”) (all the foregoing, title collectively, the "Assets") consisting of the following:
(a) all of the assets listed on Attachment (A);
(b) all cash in bank accounts of Seller as listed on Attachment (B). Buyer will, after withdrawing the cash in the Bank of America bank account, vacate the said bank account and interest open a new one in Buyer’s name only. Seller will close the Bank of America account;
(c) all accounts receivable of Seller;
(d) any income tax rebates of Seller;
(e) all potential legal claims of Seller;
(f) all Work-in-Process (being herein defined as any and all executory contracts with third party customers) as set forth on Attachment (C);
(g) all Seller’s goodwill, including goodwill pertaining to the assets utilized Business operations;
(h) all names, marks, logos, slogans, advertising, trademarks and copyrights (whether or not registered), inventions, techniques, discoveries, improvements, designs, patterns, specifications, formulae, computer software, trade secrets, proprietary rights and nonpublic information and data, whether patentable or not (collectively, the "Rights") listed on Attachment (D) and all goodwill associated therewith;
(i) all customer and supplier lists, working files and correspondence with customers and suppliers (both actual and prospective), plans, blueprints, drawings, credit information, business plans, studies, surveys, reports, promotional literature, and materials and trade association memberships, used or held for use in connection with or relating to the business;
(j) all contracts, sale or purchase orders, agreements, prepaid service contracts, leases, legally enforceable commitments, and other binding arrangements of the Seller, listed on Attachment (E);
(k) to the extent legally permissible, all licenses, permits, authorizations, and other approvals from any governmental body or authority (federal, state or local) (collectively, the "Permits") used or held for use in connection with the performance Business; and,
(l) all other assets owned exclusively by Seller, to which no other company or person has any claim, except for the Excluded Assets defined in section 4.1.2.
4.1.2 The Assets shall not include the following:
(a) corporate minute books and technical and administrative support stock record books of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”)Seller;
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including b) employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all (c) the property located on the Leasehold Property that is not owned by the Seller and which is listed on Attachment (F). All of Arrow’s other tangible and intangible such excluded assets related being hereinafter referred to as the "Excluded Assets". References to the BusinessAssets shall not be deemed to include references to the Excluded Assets.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Asset Purchase Agreement (Si Diamond Technology Inc)
Purchase and Sale of Assets. Upon (a) Except as otherwise provided below and subject to the terms and conditions hereofof this Agreement, Parent and each Seller shall sell, convey, transfer, assign and deliver to Buyer at the Closing, Arrow shall sellfree and clear of all Liens (as hereinafter defined), transfer and assign to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arrowexcept for the Permitted Liens (as hereinafter defined), all of Parent’s and each Seller’s right, title and interest in, to and under the assets and properties of every kind, nature and description of Parent and each Seller primarily used in the conduct of the Business (all of such assets and properties being referred to herein as the “Purchased Assets”). The Purchased Assets shall include, but shall not be limited to, the following assets of Parent and any Seller:
(i) all of the tangible personal property, machinery, equipment, tools, machine and electric parts, supplies, computers and peripheral equipment, appliances, office furniture and fixtures and vehicles, as set forth on Schedule 1.1(a)(i), that are owned or used by Parent or any Seller primarily in connection with the Business;
(ii) all of the rights, tangible and intangible, of Parent and any Seller existing under the Contracts of Parent and each Seller relating primarily to the Business, all of which Contracts are listed on Schedule 1.1(a)(ii) attached hereto (collectively, the “Assumed Contracts”);
(iii) all rights in and to any Permits required to conduct the Business and, to the extent assignable, all other Permits used primarily in connection with the Business, if any;
(iv) all raw materials, work-in progress and finished-goods inventories, and all repair and replacement parts and materials, and all other parts and materials, used primarily in connection with the Business, including, without limitation, all inventories of computer program code (in all media) and materials and program documentation (collectively, the “Inventory”), and any and all rights to market and sell such Inventory;
(v) all rights in and to any requirements, processes formulations, methods, technology, know-how, formulae, trade secrets, trade dress, designs, inventions and other proprietary rights and all documentation embodying, representing or otherwise describing any of the foregoing, owned or held by Parent or any Seller used primarily in connection with the Business;
(vi) all Seller Intellectual Property and computer software (including object code and source code) and all related tools, know-how, trade secrets and documentation of Parent and each Seller used primarily in connection with or used by the Business, including, without limitation, those listed on Schedule 1.1(a)(vi);
(vii) all rights in and to the assets utilized customer lists, parts lists, vendor lists, promotion lists, marketing data and other compilations of names and data of Parent and each Seller developed primarily in connection with, and relating primarily to, the Business, and which shall be delivered by or on behalf of Parent and each Seller to Buyer at or prior to the Closing;
(viii) all of Parent’s and each Seller’s rights in and to the computer software programs (including software licensed to Parent or any Seller) used primarily in connection with the performance Business or developed or under development by, or on behalf of, Parent and any Seller primarily in connection with the Business, including, without limitation, those identified on Schedule 1.1(a)(viii), including the source code and object code for such software, and all technical and administrative support descriptive materials (other than Inventory) relating to the acquisition, design, development, use or maintenance of computer code and program documentation and materials in any and all languages, in each case to the extent that Parent or any Seller possesses and has a right to possess and transfer the same;
(ix) solely with respect to the Business, all accounts and notes receivable (the “Accounts Receivable”), negotiable instruments of or made payable to Parent or any Seller, advanced payments, claims for refunds and deposits and other prepaid items of Parent or any Seller, including all security deposits made by Parent or any Seller pursuant to any vendor contracts, including, without limitation, those identified on Schedule 1.1
(a) (ix);
(x) all Governmental Approvals (as defined herein) issued primarily in connection with the Business, and all pending applications therefor;
(xi) all causes of action, claims, suits, proceedings, judgments or demands, of whatsoever nature, rights to insurance proceeds and other similar claims, of or held by Parent or any Seller against any third parties, primarily with respect to or arising from the Business;
(xii) copies of all books, and all files, papers, agreements, correspondence, databases, information systems, programs, software, historical logs, operating guides and manuals, documents, records and documentation thereof primarily related to any of the Purchased Assets or the Assumed Obligations, or used in the conduct of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”)whatever medium, but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, only if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 (xiii) all Permits relating of Parent’s or any Seller’s goodwill primarily associated with the Business and the Purchased Assets; and
(xiv) all other assets, properties, rights and claims primarily related to the operations or conduct of the Business or which arise primarily in or from the Dagger Facilitiesconduct thereof.
(b) Notwithstanding the foregoing, including Parent and each Seller shall not transfer to Buyer, and the permits Purchased Assets shall not include, (i) the articles of organization, operating agreements, minute books, record books, tax identification numbers, and other organizational documents of Parent or any Seller; (ii) Parent’s or any Seller’s rights under this Agreement and any other agreement, document or instrument entered into pursuant to this Agreement; (iii) net operating losses, cash and cash equivalents of Parent or any Seller (other than security and other deposits and prepaid fees and expenses and other advances maintained for use in the Business); (iv) any equity securities issued by a Seller or any other party to Parent or any Seller; and (v) any of the assets listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries 1.1(b) (collectively, the “Dagger Subsidiary SharesExcluded Assets”).
(c) As used herein, “Liens” mean liens, rights or options of any third party to acquire assets, security interests, mortgages, encumbrances and restrictions of any kind. As used herein, "Permitted Liens” means (i) such imperfections of title, easements or Liens which do not materially impair the current use of the Purchased Assets, (ii) materialmen’s, mechanics’, carriers’, workmen’s, warehousemen’s, repairmen’s and other like Liens arising in the ordinary course of business, or deposits to obtain the release of such Liens, (iii) Liens for taxes not yet due and payable, or being contested in good faith and (iv) the Liens listed on Schedule 1.1(c).
Appears in 1 contract
Purchase and Sale of Assets. Upon On and subject to the terms and conditions hereofof this Agreement, at the ClosingBuyer agrees to purchase from Seller, Arrow shall and Seller agrees to sell, transfer and assign to Acquisition Subtransfer, convey, and Acquisition Sub shall purchase deliver to Buyer free and acquire from Arrowclear of all Encumbrances (other than Permitted Encumbrances), all right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support all of the Businessassets, including rights, privileges, claims and properties of every kind, nature, character and description, real, personal and mixed, tangible and intangible, absolute or contingent, wherever located, used in, necessary for or relating to the following assets operation of the Business (collectively, the “Dagger Acquired Assets”), in each case free and clear of all Security Interestsincluding, except Permitted Encumbranceswithout limitation:
2.1.1 all contracts and other arrangements relating to (a) All Seller Pipeline Loans existing as of the Business pursuant to which Arrow is providing goods and/or services, Closing and all proposalsrights arising from or related thereto (including without limitation, bids and offers for future such contracts and arrangementsaccounts receivable related to Seller Pipeline Loans), including the contracts and other arrangements, proposals, bids and offers as listed on in subsection (a) of Schedule 2.1.1 2.1;
(b) All Contracts listed in subsection (b) of Schedule 2.1 (the “Dagger EngagementsAssumed Contracts”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”)c) All tangible personal property of Seller;
2.1.3 (d) All Business Intellectual Property and all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contractsgoodwill associated therewith;
2.1.4 all of the leases(e) Books, subleasesdata, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents files and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies operation of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities(but excluding corporate minute books and stock records of Seller and originals that Seller is required by Law to retain in its possession) and all Confidential Information associated therewith except, including the permits listed on Schedule 2.1.12in each case, to the extent (i) subject to attorney-client privilege or (ii) subject to the terms of any Law or Contract which prohibits the disclosure of same may (in which case (A) Seller shall redact such item in accordance with such Law or Contract and (B) such item, as redacted, shall be transferredan Acquired Asset);
(f) All rights of Seller or any of its Affiliates with respect to title or escrow joint ventures, partnerships or relationships which shall include, for the avoidance of doubt, all of the Referral Arrangements;
(g) All of the equity interests of Real Estate Title Services, LLC, a Kentucky limited liability company (“RETS”);
(h) All prepaid expenses and deposits of Seller or any of its Affiliates (including, without limitation, the Security Deposits) except as set forth on Schedule 2.2;
(i) All claims and causes of action of Seller or any of its Affiliates related to the Acquired Assets or arising out of the operation of the Business after the Closing; and
2.1.13 all (j) Goodwill of Arrow’s other tangible and intangible assets related to Seller or any of its Affiliates associated with the operation of the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. Upon the terms and subject to the terms and satisfaction of the conditions hereofcontained in this Agreement, at the Closing, Arrow each Seller shall sell, assign, convey, transfer and assign deliver to Acquisition Subthe Buyer, and Acquisition Sub shall the Buyer shall, by the Buyer’s payment of the Purchase Price, purchase and acquire from Arrowthe Sellers, all right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support of the Businessinterest, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Encumbrances (other than Permitted Encumbrances:
2.1.1 ), in and to all contracts of the properties, rights, interests and other arrangements tangible and intangible assets of the Sellers relating to the Business pursuant (wherever located and whether or not required to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangementsbe reflected on a balance sheet prepared in accordance with generally accepted accounting principles), including any such assets acquired by the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (Sellers after the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating date hereof but prior to the BusinessClosing; provided, excluding however, that the contracts and other arrangements listed on Schedule 2.1.2 Purchased Assets shall not include any of the Excluded Assets. Without limiting the generality of the foregoing, the Purchased Assets shall include the following (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating except to the Business extent listed or otherwise included as an Excluded Asset):
(a) all Inventory, supplies, materials and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all spare parts of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist Sellers as of the Closing;
2.1.6 (b) all Assumed Agreements;
(c) all Purchased IP;
(d) all files, documents, instruments, papers, books, reports, records, tapes, microfilms, photographs, letters, budgets, forecasts, ledgers, journals, title policies, customer lists, regulatory filings, all supporting documents for regulatory filings, operating data and plans, technical documentation (lab notebooks, manufacturing instructions and processes, design specifications, blueprints, records of experiments, electronic copies of patent applications as filed, operating instructions, logic manuals, flow charts, and similar items), user documentation (including installation guides, user manuals, process manuals, training materials, release notes and working papers), marketing documentation, advertising and promotional materials (including sales brochures, flyers, pamphlets and web pages), and other similar materials all to the extent related to the Business, in each case whether or not in electronic form, and without regard to the media used, and similar items of the rights in or relating to intellectual property Sellers as of the Closing (except as otherwise expressly described in the Ancillary Agreement relating to intellectual propertySection 2.2) (collectively, the form of which is attached as Exhibit A (the “Intellectual Property AgreementDocumentary Materials”);
2.1.7 (e) all rights under non-disclosure or confidentiality, non-compete, non-solicitation or invention assignment agreements with current and former Employees and agents of Arrow’s training materials, speaking materials and sales the Sellers or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily with third parties relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2or any portion thereof), including all furniturenon-disclosure agreements executed by parties to which a Seller has made available information, fixtureswhether or not such agreements are included as Assumed Agreements;
(f) all rights of the Sellers under or pursuant to all warranties, machineryrepresentations and guarantees made by suppliers, office manufacturers or contractors, pertaining to any Purchased Assets;
(g) any documents or other materials that are subject to attorney-client or other privilege, or to the attorney work product protection, to the extent that they relate to any of the Purchased Assets, including all Patent, Copyright, and other equipment Trademark prosecution files and leasehold improvements materials prepared or held by attorneys representing a Seller on such matters;
(h) all general, commercial and product liability insurance benefits, including rights and proceeds, arising from or relating to the Business Business, the Purchased Assets or the Assumed Liabilities (other than directors and officers liability policies maintained by the Sellers);
(1) 100% of the equity interest in TetraLogic Birinapant UK Ltd. and (2) 100% of the equity interests in TetraLogic Shape UK Ltd. (all of such equity interests described in (1) and (2), the “Acquired Equity Interests”, and all other tangible assets as materially listed on Schedule 2.1.8 (of the entities to which such Acquired Equity Interests relate, the “Dagger Tangible AssetsAcquired Entities”);
2.1.9 all (j) Tax receivables, Tax credits of Arrow’s accounts receivable any kind or nature and unbilled accounts receivable and work-in-process that relate to Tax refunds, in each case of the Business (Acquired Entities, other than the “Dagger Receivables” and the “Dagger Work-In-Process,” respectivelyExcluded Assets described in Section 2.2(n), Section 2.2(o) or Section 2.2(p);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete k) copies of all other booksTax Returns filed by the Acquired Entities for any taxable period beginning on or after January 1, papers2012, ledgersand all examination reports, documents statements, deficiencies and records correspondence between each Acquired Entity and any Governmental Authority relating to Taxes for taxable periods beginning on or after January 1, 2012; and
(l) all claims (including claims for past infringement or misappropriation of Purchased IP) and causes of action of the Dagger Assets.
2.1.11 Sellers as of the Closing against Persons other than the Sellers (regardless of whether or not such claims and causes of action have been asserted by the Sellers), and all inventory rights of indemnity, warranty rights, rights of contribution, rights to refunds, rights of reimbursement and supplies other rights of recovery, including rights to insurance proceeds, possessed by the Sellers as of the Closing (regardless of whether such rights are currently exercisable), in each case to the extent related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the BusinessPurchased Assets.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Asset Purchase Agreement (Tetralogic Pharmaceuticals Corp)
Purchase and Sale of Assets. Upon and subject (a) Subject to the terms and conditions hereofof this Agreement, at the ClosingINI shall purchase from Pompton Valley, Arrow and Pompton Valley shall sell, transfer convey, transfer, assign and assign deliver to Acquisition Sub, and Acquisition Sub shall INI for the purchase and acquire from Arrowprice specified in Section 3 hereof, all of Pompton Valley's right, title and interest in and to the assets utilized following assets, subject only to the encumbrances listed on Schedule 3(h) (all of such assets, except to the extent they are Excluded Assets, are referred to herein as the "Assets"), free and clear of any other encumbrances:
(1) all tangible personal property (including, without limitation, computer and office equipment and supplies) relating to or used in connection the Publishing Business (each of which items with a book value of more than $1,000 as of June 30, 1997 is listed on Schedule 1(a)(1));
(2) all accounts receivable, all cash representing the performance unexpended proceeds of borrowings by Pompton Valley, to the extent such borrowings are included in the Assumed Liabilities, and technical and administrative support prepayments for services not yet rendered by Pompton Valley as of the Closing, all of which amounts of cash are set forth in Schedule 1(a) (2);
(3) all Intellectual Property (as defined below);
(4) all books, records and other documents of Pompton Valley relating to the conduct of the Publishing Business or the ownership of the Assets;
(5) all Assumed Contracts (as defined below); and
(6) all other assets and rights of Pompton Valley, tangible or intangible, relating to or used in the Publishing Business, including whether or not specifically referred to herein or in any instrument of conveyance delivered pursuant hereto, except to the extent they are Excluded Assets (as defined below).
(b) Notwithstanding anything to the contrary in this Agreement, the Assets shall not include, and INI shall not purchase, any of the following assets (the “Dagger "Excluded Assets”), in each case free and clear of "):
(1) all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, cash (other than thosecash described in Section 1(a)(2)); and
(2) all contracts, if anyleases, and other agreements (written or oral) other than Assumed Contracts.
(c) Upon the sale of the Assets by Pompton Valley, INI shall assume, perform and discharge the following liabilities and obligations of Pompton Valley (the "Assumed Liabilities"): all liabilities and obligations of Pompton Valley arising after the Closing under contracts, leases, licenses and other agreements (written or oral) specifically listed in Schedule 1(c) (the "Assumed Contracts"), which constitute Excluded Assets under Section 2.2) that exist are hereby assigned to and assumed by INI as of the Closing;Closing Date. With respect to Pompton Valley's payment obligations under the Assumed Contracts (w) between Pompton Valley and Joe Xxxxxxxx xx the amount of $19,750, (x) between Pompton Valley and SMI in the amount of $30,800, (y) between Joe Xxxxxxxx xxx Visa in the amount of $19,000, and (z) between Joe Xxxxxxxxxx xxx American Express in the amount of $15,000, INI agrees to pay such Assumed Liabilities on or before December 31, 1997. Except for the Assumed Liabilities, INI shall not assume any liabilities, obligations or commitments of Pompton Valley, whether absolute, accrued, contingent, known or unknown (the "Excluded Liabilities").
2.1.6 all (d) The closing of the rights in or relating to intellectual property described in the Ancillary transactions contemplated by this Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all "Closing") shall take place at the offices of Arrow’s training materialsWillxxxx & Xonnxxxx xx 725 00xx Xx., speaking materials and sales or promotional materials that relate XX, Xxxxxxxxxx, XX 00000 xx the date hereof. The date of closing is referred to herein as the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets"Closing Date".
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Asset Purchase Agreement (Next Generation Media Corp)
Purchase and Sale of Assets. Upon the terms and subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Seller shall sell, convey, assign and transfer to Purchaser and assign Purchaser shall purchase, acquire and accept from Seller, free and clear of all Liens, other than the Lien granted pursuant to Acquisition Sub, the Pledge and Acquisition Sub shall purchase and acquire from ArrowSecurity Agreement, all right, title and interest of Seller in and to the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements assets used by Seller at the Norian Facility to manufacture the Products (except for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2and subject to any decreases or dispositions thereof not inconsistent with the terms of this Agreement) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary SharesConveyed Assets”). Without limiting the foregoing, the Conveyed Assets shall include, without limitation, all rights, title and interest of Seller in and to, those certain assets and properties described in the following clauses (a) through (j):
(a) Inventories owned by Seller on the Closing Date and located at the Norian Facility;
(b) except for the Excluded Assets, the furniture, equipment, machinery, vehicles, spare parts, tools and other similar tangible property owned, leased or licensed by Seller either within or located at the Norian Facility (the “Equipment”), including without limitation any leases relating to such Equipment so leased by Seller and located within or at the Norian Facility (the “Equipment Leases”), together with any rights or claims arising out of the breach of any express or implied warranty by the manufacturers or sellers of any such Equipment or any component thereof;
(c) subject to Section 2.2 hereof, the contracts, leases, licenses, agreements and commitments set forth on Schedule 5.10 and those not required to be disclosed on such Schedule because they do not meet the thresholds set forth in Section 5.10 (excluding contracts, leases, licenses, agreements and commitments relating to the Excluded Assets) (collectively with the Equipment Leases described in clause (b) above, the “Assumed Contracts”);
(d) transferable Governmental Authorizations held by or issued to Seller and necessary to operate the Norian Facility;
(e) lists of suppliers and vendors to Seller for any materials or services used in connection with the Conveyed Assets;
(f) all rights of Seller under express or implied warranties from vendors related to the Conveyed Assets;
(g) tangible assets related to the Products;
(h) Intellectual Property used in the manufacture of Products, including but not limited to trade secrets and the Conveyed Patents and the Conveyed Trademarks and all goodwill associated therewith, but excluding any patents and trademarks other than the Conveyed Patents and Conveyed Trademarks (all such Intellectual Property being conveyed, the “Conveyed Intellectual Property”);
(i) any other assets or rights of Seller required to manufacture the Products; and
(j) any maintenance records, manuals and other documents specifically related to the Conveyed Assets and payroll and personnel records for the Norian Employees (to the extent Seller is legally permitted to transfer). Notwithstanding anything to the contrary contained in this Agreement, Seller may retain copies of any contracts, records, or any other document or materials which it must retain pursuant to any applicable statute, rule, regulation or ordinance or for financial reporting purposes, tax purposes or in connection with the Retained Liabilities.
Appears in 1 contract
Purchase and Sale of Assets. Upon Subject to and subject to upon the terms and conditions hereofset forth in this Agreement and in consideration of the Purchase Price (as defined below), at the ClosingClosing (as defined below) of the transactions contemplated hereby, Arrow Seller and Shareholder (as applicable) shall sell, transfer transfer, convey, assign and assign deliver to Acquisition SubBuyer, and Acquisition Sub Buyer shall purchase purchase, acquire and acquire assume from ArrowSeller and Shareholder (as applicable), all right, title and interest of Seller in and to the assets utilized in connection with the performance and technical and administrative support of the Business, including the following identified assets (collectively, the “Dagger Transferred Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements (i) All Intellectual Property Rights with respect to Intellectual Property relating to the Business pursuant following assets (“Xxxxxxxxx IP”), in each case including Intellectual Property Rights created, filed or registered from March 31, 2021 through the Closing Date, solely and exclusively in respect of the Xxxxxxxxx IP, including, but not limited to:
(1) all rights (including all copyrights and renewals thereof) held by Seller or Shareholder to which Arrow is providing goods and/or servicesthe trademarks and brand designations LOGO, LOGO BY XXXX XXXXXXXXX, XXXX XXXXXXXXX, LOGO LAYERS, LOGO LINKS, LOGO LOUNGE, LOGO XXXX and all proposalsother brands and trademarks previously used, bids and offers for future such contracts and arrangementsintended to be used, or otherwise considered or developed in connection with the LOGO and/or XXXX XXXXXXXXX marks, including the contracts name, image a likeness and other arrangementsrelated Intellectual Property Rights related to Xxxx Xxxxxxxxx, proposals(collectively, bids and offers listed on Schedule 2.1.1 (herein referred to as the “Dagger EngagementsTrademarks” or the “Xxxx Xxxxxxxxx Brands”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating (2) to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow extent Seller or Xcel has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual propertyinterest therein, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2)URL xxxxxxxxxxxxx.xxx Internet domain name, including all furnitureregistrations thereof, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrowrights to listings or keyword associations in any Internet search engines or directories associated with such domain name in Seller’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of ArrowXcel’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries possession (collectively, the “Dagger Subsidiary SharesDomain Name”);
(3) all social media platforms maintained by Seller or Shareholder in connection with the design, sourcing, merchandising, sale, and marketing of products under the Trademarks, including but not limited to Facebook, Instagram, YouTube, TikTok, Twitter, Snapchat, Pinterest, and any others, including any usernames and passwords;
(4) the web pages created or acquired by or for Seller solely with respect to the sale and marketing of products under the Trademarks and associated with, or located at or under, the Domain Name (collectively the “Website”), including all Website Materials. The “Website Materials” include, without limitation: (i) web pages, support files and related information and data associated with the Website; (ii) any and all text, graphics, HTML or similar code, applets, scripts, programs, databases, source code, object code, templates, forms, image maps, documentation, audio files, video files, log files or customer data; (iii) all copyrights, copyright registrations, copyright applications, trade secrets, moral rights, publicity rights and know-how related to the Website; (iv) all content that has appeared in any past or present editions of the Website, whether archived on the Website or otherwise; and (v) the operation, concepts, look and feel of the Website and Website Materials and business ideas associated with the design, sourcing, merchandising, sale and marketing of products under the Trademarks (the “Content”) but excluding in all cases the Excluded Assets;
(5) the patents and applications and registrations therefor, if any, all those registrations and applications for registrations for the Trademarks as listed on Schedule 2.1(a)(i)(5), and all designs, drawings, specifications, inventions, know-how, trade secrets and licenses thereunder; and
(ii) All of Seller’s rights under all Contracts identified in Schedule 2.1(a)(ii) (the “Assumed Contracts”);
(iii) All available creative materials, advertising and promotional materials relating to the Trademarks in all formats, including print, electronic and digital formats, and including but not limited to product designs, sketches, ideas, and all marketing and promotional materials related to the Xxxx Xxxxxxxxx Brands (the “Promotional Materials”);
(iv) All electronic and/or digital copies and documentation, or files of or relating to the Website Materials and Promotional Materials (the “Digital Files”);
(v) All current product samples in Seller’s possession related to the Transferred Assets, if any;
(vi) All current product designs and sketches in Seller’s possession related to the Transferred Assets, if any;
(vii) All new and unopened copies of Shareholder’s book Style is Instinct that are in the possession of the Seller, if any;
(viii) All computer equipment and software, lighting and audio equipment and related technical equipment present in Shareholder’s home; and
(ix) All goodwill associated with the Trademarks and the Transferred Assets.
Appears in 1 contract
Purchase and Sale of Assets. Upon The Sellers hereby agree to sell, transfer, assign, convey and subject deliver to the terms and conditions hereofMedquist and/or, as applicable, one or more Medquist Designees, at the Closing, Arrow shall selland Medquist hereby agrees to purchase, transfer acquire and assign assume, or cause one or more Medquist Designees to Acquisition Subpurchase, acquire and Acquisition Sub shall purchase assume, from the Sellers at the Closing, upon the terms and acquire from Arrowsubject to the conditions of this Agreement, all right, title and interest of the Sellers of any nature whatsoever in the following Purchased Assets, free and clear of any and all Encumbrances of any and every kind, nature and description (other than Permitted Encumbrances and Assumed Liabilities):
(a) the Assumed Contracts and all rights thereunder;
(b) the Assumed Leases and all rights thereunder, including all options to renew, purchase, expand or lease (including rights of first refusal, first negotiation and first offer), and all credit for the assets utilized prepaid rent associated therewith (excluding Lease Security Deposits);
(c) all Accounts Receivable of the Sellers;
(d) all Equipment used or held for use in the business of the Spheris Entities;
(e) the Closing Cash;
(f) all real, personal and intangible property Taxes (“Property Taxes”) prepaid and not attributable to Pre-Closing Tax Periods;
(g) all advertising, marketing and promotional materials and all other printed or written materials used in connection with the performance and technical and administrative support business of the BusinessSpheris Entities;
(h) all Books and Records (provided that the Sellers may, including in their discretion, retain one copy of the following assets Books and Records);
(i) all Permits transferable under applicable Law;
(j) all Intellectual Property Rights owned by the Sellers or which the Sellers have the right to transfer or assign (together with the Intellectual Property Rights of Spheris India acquired under Section 2.3, the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger EngagementsPurchased Intellectual Property”);
2.1.2 (k) all contracts goodwill associated with the business of the Spheris Entities;
(l) any and all insurance proceeds, condemnation awards or other compensation in respect of loss or damage to any Purchased Asset subject to Section 5.1(m) to the extent occurring after the date hereof but prior to the Closing, and all right and claim of the Sellers to any such insurance proceeds, condemnation awards or other compensation not paid by the Closing;
(m) all other assets, inventory, properties, and rights used or held for use by the Sellers in connection with the business of the Spheris Entities;
(n) any Lease Security Deposit that has not been returned to Sellers as contemplated by Section 5.13(a) (each, a “Purchased Lease Security Deposit”); and
(o) other than as set forth in Section 2.2(a), all rights, claims, actions, refunds, causes of action, choses in action, actions, suits or proceedings, rights of recovery, rights of setoff, rights of recoupment, rights of indemnity or contribution and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Businesssimilar rights (known and unknown, excluding the contracts matured and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a partyunmatured, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leasesaccrued or contingent, regardless of whether Arrow has obtained such rights are currently exercisable) against any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2)Person, including all furniturewarranties, fixturesrepresentations, machineryguarantees, office indemnities and other equipment and leasehold improvements relating contractual claims (express, implied or otherwise) to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies extent related to the Business;
2.1.12 all Permits relating to the Business Purchased Assets or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the BusinessAssumed Liabilities.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. Upon the terms and subject to the terms and conditions hereofof this Agreement, at the Closing, Arrow unless specifically excluded herein, Seller shall sell, transfer sell and assign to Acquisition SubPurchaser and Purchaser shall purchase, acquire and Acquisition Sub shall purchase accept all right, title and acquire from Arrowinterest of Seller in, to and under all assets, properties and rights used or useful in the conduct of Seller's business other than the Excluded Assets (as defined below) (collectively, the Assets), including those whereby Seller provides bandwidth enabled data services (Services) to customers (Customers), as follows:
(a) All of Seller's right, title and interest in and to the assets utilized supplier, Customer and other agreements and leases (Seller Contracts), listed on attached Schedule A, including the right to assert claims and take other rightful actions in respect of breaches, defaults and other violations of such contracts, arrangements, licenses, leases and other agreements;
(b) Originals or copies of all books, records, manuals and other materials (in any form or medium) relating to or used with the Seller Contracts (collectively, Books and Records), including any Customer contracts, price lists, correspondence, mailing lists, lists of Customers, distribution lists, photographs, sales and promotional materials and records, operating records, data books, intellectual property disclosures, media materials and plates, accounting records, sales order files and litigation files, operating, safety and maintenance manuals, peering agreements or arrangements, engineering design plans, blueprints and as-built plans, specifications, procedures, books of account, customer telephone numbers, addresses and other contact information, lock box account numbers, billing records and payment history, all regulatory filings and other similar items of Seller in connection with the performance provision of Service under the Seller Contracts;
(c) All Seller bank accounts related to Seller's business and technical deposits (including those underlying any security or letter of credit arrangement) or prepayments made by Seller associated with the Seller Contracts;
(d) All accounts receivable arising from the Seller Contracts and administrative support all rights to collections of monies including previously written-off accounts, all Customer lockbox accounts and amounts received therein on and after midnight of the BusinessClosing Date and other forms of payment received after the Closing Date pursuant to a Seller Contract;
(e) All of the fixtures, machinery, equipment, fixed assets, furniture, tools, vehicles, maintenance equipment, computer hardware and other tangible personal property used or useful in the operation of Seller's business or related to the Seller Contracts, including but not limited to those listed on attached Schedule B;
(f) Any leasehold improvements related to a Seller Contract;
(g) To the following assets fullest extent legally transferable pursuant to applicable law, all of Seller's intellectual property, if any, including, without limitation, all (i) inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof; (ii) registered and unregistered trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith; (iii) registered and unregistered copyrightable works and copyrights, and all applications, registrations, and renewals in connection therewith; (iv) confidentiality, research, and license agreements, trade secrets and confidential business information (including research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer lists, pricing and cost information, and business and marketing plans and proposals to the “Dagger extent that any of the foregoing constitute trade secrets or confidential information used in connection with the operation of the Assets”); (v) intranet networks; (vi) copyrighted software owned by third parties and leased or licensed to any of Sellers; (vii) Internet Protocol (IP) space and IP addresses allocated or otherwise made available to Sellers by RIPE or any other third party; (viii) computer software or systems related to the Assets, including source codes, object codes, executable codes, databases and files referenced by the codes and all media containing the same and all relevant explanations, documentation, flowcharts, logic diagrams and rules for the source codes, in each case free with respect to software that is owned by Seller; and clear (ix) copies and tangible embodiments of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to any of the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 foregoing (the “Dagger Engagements”in whatever form or medium);
2.1.2 all contracts (h) To the fullest extent legally transferable pursuant to applicable law, the licenses, permits, franchises and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than thoseauthorizations, if any, which constitute Excluded Assets under Section 2.2) that exist as of any governmental entity relating to the Closingoperation of Seller's business or the Seller Contracts;
2.1.6 (i) All of Seller's claims, causes of action, litigation and other rights (including rights to refunds or credits) against all other persons, but only to the extent that the same arise out of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the BusinessAssets as scheduled;
2.1.8 all (j) All inventory of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferredSeller; and
2.1.13 all (k) All manufacturer warranties and similar rights in favor of Arrow’s other tangible and intangible assets related Sellers with respect to the Businessany Asset.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Asset Purchase Agreement (Cogent Communications Group Inc)
Purchase and Sale of Assets. Upon The Seller agrees to sell, assign, transfer, convey and deliver to the Buyer, and the Buyer agrees to purchase from the Seller at the Closing, subject to the exclusions contained in Section 2.2 and subject to the other terms and conditions hereof, at the Closing, Arrow shall sell, transfer and assign to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arrowcontained herein, all of Seller’s right, title and interest in and to all of the Assets, properties and rights of the Business described in the attached Disclosure Schedule (collectively, the “Acquired Assets”) free and clear of any Encumbrances (except Permitted Encumbrances) including without limitation:
(a) all assets utilized of the Seller (including assets that are acquired after the date hereof) which are used in connection with the performance and technical and administrative support conduct of the Business, including the following without limitation all such assets as constitute tangible personal property (the “Dagger Assets”)such as machinery, in each case free and clear of all Security Interestsequipment, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or servicescontrol systems, and all proposalsinventories, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training raw materials, speaking materials supplies, manufactured and sales or promotional materials that relate to purchased parts, works in progress, finished goods, computer and office equipment and furniture) used in connection with the Business;
2.1.8 (b) all Permits which are held by the Seller and required for the conduct of Arrow’s tangible assets primarily the Business or for the ownership of the Acquired Assets and any pending applications relating to any of the foregoing;
(c) all Intellectual Property used in connection with the conduct of the Business, goodwill associated therewith, licenses and sublicenses granted in respect thereto and rights thereunder, remedies against infringement thereof and rights to protection of interest therein;
(d) all databases, domain names, phone lists, customer lists, customer names, supplier lists, personnel lists, lead lists and any other data or information pertaining to the Acquired Assets or the Business in whatever form or medium;
(e) all assignable rights of the Seller under the (i) contractual obligations described in the attached DisclosureSchedule and (ii) contractual obligations relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process facilities that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries any Company services (collectively, the “Dagger Subsidiary SharesContracts”);
(f) all of the rights and valid active marks to the use of the name Bar None and all related names and valid active marks similar thereto;
(g) all prepaid expenses as of the Closing Date;
(h) all intangible personal property of any kind or character, whether evidenced in writing or not, including but not limited to all deferred charges and prepaid expenses, bonds, claims and causes of action (whether fixed or contingent);
(i) all papers, documents, instruments, books and records, files, agreements, books of account and other records by which the Acquired Assets are identified or enforced, or otherwise pertaining to the Acquired Assets (including, without limitation, customer invoices, customer lists, vendor and supplier lists, drafts and other documents and materials relating to customer transactions);
(j) all technical materials and guidelines, brochures, sales literature, promotional materials and other sales materials;
(k) all goodwill associated with the Acquired Assets;
(l) all of the Seller’s rights and interests in all telephone numbers relating to the Acquired Assets and directory listings for the same;
(m) all corporate, financial and computer platform systems related to the Acquired Assets and all source and object codes for custom software programs, and the documentation and training materials related thereto, and all user names and passwords and login data for all systems;
(n) all logos associated with the Acquired Assets; and
(o) all other assets and rights of every kind and nature, real or personal, tangible or intangible, that are owned or claimed by the Seller and that are necessary to, or used by the Seller in connection with, the Acquired Assets. Notwithstanding the foregoing, nothing in this Agreement shall be construed as an attempt or agreement to assign (i) any Contract that is by its terms non-assignable without the consent of the other party or parties thereto unless such consent shall have been given or (ii) any Contract or claim as to which all the remedies for the enforcement thereof enjoyed by any Seller would not pass to the Buyer as an incident of the assignments provided for by this Agreement. In order, however, that the full value of every Contract and claim of the character described in clauses (i) and (ii) above may be realized by the Buyer, the Seller will (A) continue to promptly seek to obtain written approval for assignment of each such Contract or claim and, failing that, shall, at the request and under the direction of the Buyer, in the name of the Seller or otherwise as the Buyer shall specify, take all action and do or cause to be done all things as shall be reasonably necessary in order that the rights and obligations of the Seller under each such Contract and claim shall be preserved and (B) take such actions as may be necessary to give the Buyer the benefit of such Contract pending its assignment to the Buyer. Notwithstanding any provision in this Section 2.1 to the contrary, the Buyer shall not be deemed to have waived any condition set forth in Section 6.1.5 in respect of any Contract unless and until the Buyer either provides a written waiver in respect of any such Contract in accordance therewith or elects to proceed to consummate the transactions contemplated by this Agreement at Closing.
Appears in 1 contract
Purchase and Sale of Assets. Upon Except as set forth in Section 1.02, upon the terms and subject to the terms and conditions hereofset forth herein, at the Closing, Arrow the Seller shall sell, transfer convey, transfer, assign and assign deliver to Acquisition Subthe Purchaser, and Acquisition Sub the Purchaser shall purchase purchase, acquire and acquire accept from Arrowthe Seller, free and clear of Encumbrances (other than the Permitted Encumbrances), all of the Seller's right, title and interest in and to the assets utilized following properties, assets, Contracts, rights and choses in connection action, whether tangible or intangible, whether real, personal or mixed, whether accrued, contingent or otherwise, and wherever located, as the same existed on the Closing Date as provided in this Agreement (collectively, the "Assets"):
(a) subject to the terms of the Film Contracts, all right, title and interest of the Seller, in and to the programs and films set forth on Schedule 3.06(a), including but not limited to, all literary, dramatic and musical material therein contained (collectively and individually as to each film or program, the "Film Library");
(b) all of the Seller's Film Assets associated with the performance Film Library, including all inventories of films, videos, DVDs and technical other similar products, availability schedules, historical information, and administrative support film elements;
(c) all of the Business, including the following assets Seller's accounts receivable (the “Dagger Assets”on and off balance sheet), in each case free notes, prepaid items and clear expenses, deferred charges, rights of all Security Interestsoffset, except Permitted Encumbrances:
2.1.1 all contracts claims for refund, and other arrangements receivables or right to payment of any nature whatsoever relating to the Business pursuant to which Arrow is providing goods and/or servicesFilm Library (collectively, "Receivables") existing on the Closing Date, and all proposalssuch items arising thereafter, bids a true, correct and offers for future such contracts and arrangementscomplete list of which, including as they existed on the contracts and other arrangementsClosing Date, proposals, bids and offers listed on is set forth hereto as Schedule 2.1.1 (the “Dagger Engagements”)3.04;
2.1.2 (d) cash and cash equivalents of Seller received from the Film Library on and after the Closing Date;
(e) all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or Film Asset Acquisition Agreements, Film Asset Exploitation Agreements, all Contracts for the distribution by Seller of products or services relating to the BusinessFilm Library, excluding and all other Contracts entered into by the contracts and other arrangements listed Seller relating to the Film Library, including those specified on Schedule 2.1.2 3.07 (the “Dagger Completed Engagements”"Assumed Contracts");
2.1.3 (f) all other contracts of the Seller's (i) trademarks and service marks relating to the Business Film Library, and to which Arrow is a partyany registrations, including employment agreementsregistration certificates and applications for registration therefor, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts the goodwill associated therewith (the “Dagger Contracts”"Trademarks"), but excluding the Dagger Leases(ii) trade names, regardless of whether Arrow has obtained any necessary consents assumed and fictitious names and registered user names relating to the assignment of such Dagger ContractsFilm Library, and registrations and any applications for registration therefor, and the goodwill associated therewith and related internet domain names (the "Trade Names"), and (iii) copyrights and registrations relating to the Film Library and any applications for registration therefor (the "Copyrights"), including, without limitation, those items which are specified on Schedule 3.06(c)(i);
2.1.4 (g) all of the leasesSeller's available books, subleasesrecords, licenses or files, manuals and other agreements similar materials, including, advertising materials, marketing materials, brochures, business and marketing plans and proposals, production data, sales and promotional materials and records, purchasing materials and records, files for the use of physical locations listed on Schedule 2.1.4 past, existing and contemplated projects, media materials, financial and fiscal records (the “Dagger Leases”copies);
2.1.5 , sales order files, customer lists and customer records in any form (and all prepaid expensessoftware related to any such customer records, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2extent transferable), including all furniturewhether of past or present customers or potential future customers, fixturesrelated to or arising from the Film Library, machineryadvertiser lists, office receipts and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and computer records relating to the Dagger AssetsFilm Library, including standard operating procedures, correspondence, customer relations information, and any other trade secrets, confidential or proprietary information pertaining to the Film Library (the "Business Records");
(h) all records of Seller's claims, choses in action, causes of action and documents judgments relating to the Dagger EngagementsFilm Library, the Dagger Contractsincluding those listed on Schedule 1.01(h);
(i) all certifications, the Dagger Receivablesfranchises, the Dagger Work-In-Process approvals, permits licenses, orders, registrations, certificates, variances and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records similar permits or rights obtained from any Governmental Entity or professional or trade organization relating to the Dagger Assets.
2.1.11 Film Library and all inventory and supplies related to the Businesspending applications therefor;
2.1.12 (j) all Permits third party warranties and guarantees with respect to any of the Assets; and
(k) all rights to receive insurance proceeds relating to the Business damage, destruction or impairment of any of the Dagger Facilities, including the permits listed Assets on Schedule 2.1.12, or subsequent to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the BusinessClosing Date.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. (a) Upon the terms and subject to the terms and conditions hereofset forth in this Agreement, at the ClosingClosing (as defined hereinafter), Arrow the Seller shall sellassign, transfer transfer, convey and assign deliver to Acquisition SubPurchaser, and Acquisition Sub Purchaser shall purchase and acquire from Arrowthe Seller, all right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets (the “Dagger "Assets”"), together with replacements thereof and additions thereto made between the date hereof and the Closing Date (as defined herein), whether or not on the books and records of the Seller (exclusive of the Excluded Assets described in each case Section 1.1 (b) below, the "Excluded Assets"), free and clear of all Security Interestsliens, except Permitted Encumbrancessecurity interests, charges, encumbrances and rights of others:
2.1.1 (i) All personal property, tangible or intangible, owned by the Seller, which is used or useful in the operation of Seller's business,
(a) (i) attached hereto;
(ii) All of the Seller's (A) proprietary information, trade secrets and confidential information, technical information and data, trademarks, trade names and service marks, including any rights of the Seller in and to the business name "Southern Medical Mart"; (B) machinery and equipment warranties related to the Assets; (C) rights in any causes of action related to or in connection with the Assets; (D) all contracts and other arrangements documentation relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangementsoperation of the Seller, including the contracts all license, permits and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services approvals issued by any governmental authority or otherwise necessary or relating to the Business, excluding operation of Seller's business; and (E) the contracts goodwill and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”)going concern value of Seller's business;
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all iii) All of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments Seller's books and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2)records, including all furniturefinancial, fixturesaccounting and property tax records, machinerycomputer data and programs, office market data and all correspondence with and documents pertaining to suppliers, governmental authorities and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process third parties; provided, however, that relate to the Business (the “Dagger Receivables” Seller and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow Principals may retain copies of such booksfinancial records of the Seller as may be necessary to complete their federal, papersstate and local tax returns; and
(iv) the Seller's customers, ledgerscustomer lists, documents work orders, file and records), as well as complete computer copies of all customer invoices, customer files and other books, papers, ledgers, documents and records relating to the Dagger Assetscustomer records.
2.1.11 all inventory and supplies related to (b) The parties acknowledge that the Business;
2.1.12 all Permits relating to assets (the Business or the Dagger Facilities, including the permits "Excluded Assets") listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business1.1 (b) hereto are not being acquired by Purchaser.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. Upon On the terms and subject to the terms and conditions hereofset forth in this Agreement, at the Closing, Arrow the Purchaser shall purchase, acquire and accept from the applicable Seller Entity, and the Sellers shall and shall cause the applicable Seller Entity to sell, transfer assign, transfer, convey and assign deliver to Acquisition Sub, and Acquisition Sub shall purchase and acquire from Arrowthe Purchaser, all of each Seller’s or Seller Entity’s right, title and interest in, to and under all assets, properties, rights and interests of every kind and description, tangible or intangible, of the Seller Entities used or held for use in the conduct of the Business, free and clear of all Liens (other than Permitted Liens) and all Excluded Liabilities (collectively, the “Purchased Assets”), including, but not limited to, the following:
(a) all term and fee mineral and royalty interests (the “Mineral Interests”) and all oil, gas and/or mineral leases and any ratifications or amendments to such leases together with all leaseholds, record title and operating rights, royalty interests or overriding royalty interests owned by the Sellers in such leases (together with the Mineral Interests, the “Mineral Leases”), including those Mineral Leases listed on Section 2.1(a) of the Seller Disclosure Schedule;
(b) all unitization and pooling agreements, declarations and orders, and the units created thereby, in each case, to the assets utilized extent relating to any of the Mineral Leases and the production of Hydrocarbons therefrom;
(c) all Purchased Contracts, including any and all audit rights provided for in such Purchased Contracts;
(d) all oil, gas, water supply, and salt water disposal and other wxxxx, whether producing, shut-in or abandoned, that are located on the Mineral Leases or on lands pooled or unitized therewith or used or held for use in the conduct of the Business (the “Wxxxx”), including those Wxxxx listed on Section 2.1(d) of the Seller Disclosure Schedule, and related personal property, fixtures, pipelines, inventory, equipment and improvements located on the Mineral Leases or on lands pooled or unitized therewith and used or obtained in connection with the performance ownership, exploration, development or operation of the Mineral Leases, or the production, sale, processing, treating, storing, gathering, transportation or disposal of Hydrocarbons, water or any other substance produced therefrom or attributable thereto;
(e) all pipelines listed on Section 2.1(e) of the Seller Disclosure Schedule, together with all gathering lines, above-ground facilities or structures, compression equipment, dehydrators, drips, valves, pipes, scrubbers, machinery, gauges, meters, fittings, fixtures, units, tanks, traps, cathodic protection equipment, equipment towers, field separators, liquids extractors, recorders, storage sheds, pump houses, radios and technical similar equipment related thereto that are used or held for use in the conduct of the Business (the “Production Facilities”);
(f) all fixed assets, leasehold improvements, vehicles, production equipment assets, machinery and administrative support equipment relating to the Business, including water supply and salt water disposal systems, and all other assets, machinery and equipment that are used or held for use in the conduct of the Business, in each case, that are used or held for use in the conduct of the Business, including the following assets set forth on Section 2.1(f) of the Seller Disclosure Schedule;
(g) all tangible personal property and interests therein owned by any Seller Entity, including all furniture, furnishings and tools, including the “Dagger Assets”)property set forth on Section 2.1(g) of the Seller Disclosure Schedule;
(h) all prepaid expenses, prepaid rents, prepaid insurance, utility deposits, advance payments and deposits on contractual obligations made in connection with the Business, including the items set forth on Section 2.1(h) of the Seller Disclosure Schedule;
(i) all claims and rights under contracts, supplier agreements, purchase orders, work orders, leases of equipment, machinery, production machinery, tooling and other items of personal property or otherwise, in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 (j) Permits, easements and rights-of-way used or held for use in the conduct of the Business, including the Permits, easements and rights-of-way set forth on Section 2.1(j) of the Seller Disclosure Schedule;
(k) all seismic licenses, seismic data and other geological and seismic records and related technical data and information related to the Mineral Leases, including any geologic and geophysical interpretations, in each case to the extent (i) such licenses, data and information is currently owned and may be assigned without third party consent or expenditures beyond tape copying costs and expenses or (ii) the Purchaser desires to acquire any such license, data or information and bear the cost, if any, of Arrow’s tangible assets primarily assignment or transfer;
(l) all files, books, data, information and records of the Sellers or their Affiliates relating to the Business and/or the Purchased Assets (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2but excluding the Sellers’ Retained Records), including all furnitureplats, fixturessurveys, machinerymaps, office cross-sections, production records, electric logs, cuttings, cores, core data, pressure data, decline and other equipment production curves, well files and leasehold improvements relating to the Business related matters, division of interest records, division orders, lease and title files, environmental and regulatory files, title opinions, abstracts of title, title curative documents, lease operating statements, geologic and geophysical data (including interpretive data and analysis) and all other tangible assets as materially listed on Schedule 2.1.8 accounting information, marketing reports, statements, gas balancing information and all other documents relating to customers, sales information, supplier lists, records, literature and correspondence (the collectively, “Dagger Tangible AssetsSeller’s Records”);
2.1.9 (m) all of Arrow’s accounts receivable the Sellers’ right, title and unbilled accounts receivable and work-in-process that relate interest to the Business (Hydrocarbons produced from the “Dagger Receivables” Mineral Leases, products refined and manufactured therefrom and the “Dagger Work-In-Process,” respectivelyaccounts, revenues and proceeds from the sale thereof to the extent such production has been produced or accrued at or after the Effective Time or is held on the Mineral Leases or in the tanks or is line fill (for the avoidance of doubt, unless covered by an upward adjustment to the Base Purchase Price pursuant to Section 3.3(a), the Purchased Assets shall not include any Hydrocarbons produced and sold in the ordinary course of business prior to the Effective Time);
2.1.10 (n) all books, papers, ledgers, documents rights and records obligations relating to gas imbalances (production, gathering, processing, transportation or otherwise) that are associated with the Dagger Purchased Assets, including ;
(o) all records and documents relating rights of any Seller Entity with respect to the Dagger EngagementsOwned Real Property, the Dagger Contractstogether with all facilities, the Dagger Receivablesimprovements, the Dagger Workfixtures and other appurtenances thereto and rights in respect thereof and all servitudes, easements, rights-Inof-Process way, other surface use agreements, and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating water use agreements to the Dagger Assets.
2.1.11 all inventory and supplies related to extent used in connection with the Business;
2.1.12 (p) all Permits relating to rights of any Seller Entity under non-disclosure, confidentially or similar agreements entered into with third parties in connection with the sale of the Business or any part of the Dagger FacilitiesBusiness;
(q) all rights, including the permits listed on Schedule 2.1.12claims, causes of action and credits of any Seller Entity relating to the extent the same may be transferred; andany Purchased Asset or Assumed Liability;
2.1.13 (r) all of Arrow’s other tangible warranties, guarantees and intangible assets similar rights related to the Business.
2.1.14 all of Arrow’s capital stock Purchased Assets, including warranties and guarantees made by suppliers, manufacturers and contractors under the Purchased Assets, and claims against suppliers and other voting interests third parties in connection with the Dagger Subsidiaries Purchased Contracts;
(s) the Purchased Intellectual Property;
(t) all post-petition adequate assurance deposits provided to utilities and any deposits provided to suppliers or service providers to the Sellers on a pre-petition or post-petition basis (collectively, the “Dagger Subsidiary SharesChapter 11 Deposits”)) unless specifically provided for under a Purchased Contract, in which case it shall be a Purchased Asset;
(u) refunds, credits and rebates of Taxes for any period or portion thereof prior to or ending on the Closing Date; and
(v) all goodwill and other intangible assets associated with the: (i) Trademarks included in the Purchased Intellectual Property; and (ii) the Business. Each Seller shall receive in exchange for its sale, assignment, transfer, conveyance and delivery of the Purchased Assets of such Seller to the Purchaser, its share of the Purchase Price.
Appears in 1 contract
Samples: Asset Purchase Agreement (AMERICAN EAGLE ENERGY Corp)
Purchase and Sale of Assets. Upon and subject to the terms and conditions hereof, at the Closing, Arrow shall sell, transfer and assign to Acquisition SubBuyer hereby purchases from Seller, and Acquisition Sub shall purchase Seller hereby sells, conveys, transfers and acquire from Arrowassigns to Buyer, all right, title of Seller's assets and interest in and to the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services rights relating to the Business, other than the assets excluded in Section 2 below (the "Assets"), including (without limitation) all of Seller's right, titles and interests in and to the following:
(a) Seller's rights under leases of equipment and licenses of intellectual property rights presently used in the Business, and under other agreements with vendors, customers and other third parties (excluding the contracts Excluded Agreements (as defined below), the "Assumed Agreements"), including (without limitation) its rights and receivables under agreements with customers relating to Seller's past sales and distribution of Classic Advantage Cards, Seller's other arrangements accounts receivable from past sales of goods or services, and Seller's rights under other agreements listed on attached Schedule 2.1.2 (the “Dagger Completed Engagements”1(a);
2.1.3 all other contracts relating to the Business (b) Seller's computer hardware, peripherals and to which Arrow is a partyaccessories, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advancesphone system, other prepayments equipment, tools, signs, furniture, fixtures, leasehold improvements, written marketing materials, inventory and other tangible assets used in or related rights paid or obtained by Arrow relating to the Business, including (other than those, if any, which constitute Excluded Assets under Section 2.2without limitation) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is items listed on attached as Exhibit A (the “Intellectual Property Agreement”Schedule 1(b);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate (c) Seller's rights to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets"Signet" account management and billing software system, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business Seller's corporate name and all other tangible computer software, copyrights, customer lists, domain names, URL addresses, fictitious business names, trade names, trademarks, service marks, telephone numbers, transferable permits and licenses, goodwill and other intellectual property rights and intangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies used in or related to the Business, including (without limitation) the items and rights listed on attached Schedule 1(c);
2.1.12 all Permits (d) All assignable warranties, indemnification and similar rights against the manufacturers or sellers of Seller's assets relating to the future use and performance of such assets; and
(e) All books, records, data, information and documents relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the BusinessAssets.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofof this Agreement, at the Closing, Arrow Closing (as defined below) Seller shall sell, transfer transfer, convey, assign and assign deliver to Acquisition SubBuyer, free and clear of any and all liens, pledges, claims, security interests, encumbrances, charges, restrictions or liabilities of any kind (other than liabilities assumed pursuant to Section 1.3 hereof), and Acquisition Sub Buyer shall purchase purchase, acquire and acquire accept from ArrowSeller, all of Seller’s right, title and interest in and to the following properties and assets utilized insofar as they are used in connection with the performance and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating or relate to the Acquired Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual propertyClosing Date, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary SharesPurchased Assets”):
(a) All fixed assets owned by Seller, including but not limited to those items of furniture, fixtures, computer and other equipment and other tangible assets listed on Schedule 1.1(a);
(b) Those customer and vendor agreements, insurance and other third party payor contracts and other contracts, licenses (including software licenses), leases and agreements, whether oral or written, as listed or described on Schedule 1.1(b) hereto (all such agreements and contracts being referred to herein as the “Contracts”), to which Seller is a party and which Buyer has agreed to assume pursuant to Section 1.3 below, and any rights, advances or benefits associated therewith or deposits or other prepayments made by Seller thereunder;
(c) All rights in and to the patents, patent applications, trademarks, trade names, copyrights, and other proprietary intellectual property listed or described on Schedule 1.1(c) hereto, as well all other trade secrets and know-how used in or related to the Acquired Business (hereinafter the “Intellectual Property”);
(d) All inventories of products and supplies, whether located at Seller’s facility, at locations of healthcare providers or at any other location, and any inventories of work in progress and raw materials, including but not limited to those items listed or described on Schedule 1.1(d) hereto to the extent that they exist on the Closing Date (collectively, the “Inventory”);
(e) All accounts receivable, notes receivable and unbilled rights to payment in favor of SME (other than sales commissions due SME), including but not limited to those accounts receivable listed on Schedule 1.1(e) hereto to the extent that they exist on the Closing Date, but excluding accounts receivable due from Federal health care programs, and all rights to xxxx Federal health care program payors for sales completed prior to the Closing Date (the “Excluded Medicare Receivables”), (hereinafter, the “Accounts Receivable”);
(f) All claims, causes of action, choses in action, rights of recovery and rights of set-off of any kind against any person, including without limitation any liens, security interests, pledges or other rights to payment or to enforce payment in connection with products delivered by SME on or prior to the Closing Date, except with respect to the Excluded Medicare Receivables;
(g) All customer lists, supplier lists, sales files, business development information, databases, price lists and pricing records and schedules, accounting records, sales literature and general intangibles relating to the Acquired Business, licenses to conduct the Acquired Business (to the extent transferable), and any other books, documents, instruments and records used by the Seller to conduct the Acquired Business (collectively, the “Other Assets”); and
(h) All goodwill and other intangible personal property of Seller associated with the Acquired Business, including the name “Superior Medical Equipment”.
Appears in 1 contract
Purchase and Sale of Assets. Upon On the Closing Date (as hereinafter defined), and subject to the terms and conditions hereofof this Agreement, at the Closing, Arrow Seller shall sell, transfer and assign to Acquisition Sub, Purchaser and Acquisition Sub Purchaser shall purchase and acquire from ArrowSeller as of the Effective Time (as hereinafter defined), all right, title title, interest and interest benefit in and to all of the assets utilized assets, properties and rights used in connection with the performance and technical and administrative support operation of the Drilling Business, including the following assets all of which are described below (the “Dagger Assets”), in each case free and clear and expressly excluding all Liens (as hereinafter defined):
(a) Rig No. 1 with tubulars, Rig No. 3 with tubulars, Rig No. 5 with tubulars, Rig No. 6 with tubulars and Rig No. 7 with tubulars, substantially all of which are described on Exhibit A to Schedule 1(a) (said five (5) rigs together with tubulars being hereinafter referred to collectively, as the “Rigs” or singularly as a “Rig”), certain vehicles used in the Drilling Business (the “Vehicles”), all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating of which are described on Exhibit B to the Business pursuant to which Arrow is providing goods and/or servicesSchedule 1(a), and all proposalsspare drill pipe, bids spare parts, equipment, and offers for future such contracts and arrangementsmiscellaneous Yard equipment used in the Drilling Business, including the contracts and other arrangements, proposals, bids and offers listed substantially all of which are described on Exhibit C to Schedule 2.1.1 1(a) (the “Dagger EngagementsYard Equipment”);
2.1.2 all contracts (b) Seller’s office equipment related to the Drilling Business, which is located at the Yard and other arrangements pursuant to the executive office of Seller in Denver, Colorado, the material items of which Arrow formerly provided goods and/or services are described on Schedule 1(b) (the “Office Equipment”).
(c) All support, maintenance, warranty, and similar agreements relating to the BusinessRigs, excluding the contracts Yard Equipment and other arrangements listed the Vehicles, substantially all of which are described on Schedule 2.1.2 1(c) (the “Dagger Completed EngagementsSupport Agreements”);
2.1.3 all other contracts relating (d) Those contracts, agreements and commitments of Seller under which Seller has agreed or hereafter agrees (in compliance with Section 7(c) below) to perform land contract drilling for any third party which are set forth on Schedule 1(d) and which have not been fully performed prior to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts Closing Date (the “Dagger Drilling Contracts”); provided, however, (i) in the case of a drilling contract which provides for a “dayrate” only (whether pertaining to one well or multiple xxxxx), such contracts which are being performed, but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist are not completed as of the Closing;
2.1.6 all Closing Date shall be included as a Drilling Contract, but the Purchaser shall only assume the rights and obligations arising after the Closing Date and (ii) in the case of a drilling contract which provides for multiple xxxxx on a turnkey or footage basis and which has not been completed as of Closing Date, such contract shall be included as a Drilling Contract, but only with respect to that portion of the rights in or contract relating to intellectual property described xxxxx which are spudded after the Closing Date, and Purchaser will only assume the rights and obligations arising under such contracts pertaining to the portions of such contracts pertaining to xxxxx spudded after the Closing Date. Purchaser shall not be required to assume (i) any Drilling Contract in circumstances where Purchaser determines, in its sole and absolute discretion, that a material adverse change has occurred with respect to such Drilling Contract (including the Ancillary performance thereof) at any time before the Closing Date or (ii) any Drilling Contract entered into after the date hereof, but prior to the Closing Date, that has not been approved by Purchaser pursuant to Section 7(c) below. If, as of the Effective Time, Seller shall be performing, or be committed to perform, under a drilling contract that is not to be assumed by the Purchaser at Closing, such contract shall be performed by Seller, for its own account, in which event, at the Closing, the Rig(s) which is being used to perform such contract shall nevertheless be sold to Purchaser pursuant to this Agreement relating and Purchaser and Seller shall enter into a daywork contract in order to intellectual propertyallow Seller to perform the drilling services pursuant to such drilling contract, the form of which is attached as Exhibit A hereto (the “Intellectual Property AgreementDaywork Contract”);
2.1.7 (e) Those contracts, agreements, leases and commitments of Seller set forth on Schedule 1(e) (the “Ancillary Agreements”) and those contracts, agreements, leases and commitments of Seller entered into after the date of this Agreement with respect to which Purchaser provides its written approval and agreement to assume such contracts, all of Arrowwhich shall be expressly assumed by Purchaser by written instrument at Closing, provided that Purchaser shall only be assuming the obligations of Seller which are related to periods after the Closing Date;
(f) All personal property acquired after the date of this Agreement but prior to the Closing Date by Seller used in Seller’s training materialsDrilling Business, speaking materials all of which shall be included in the appropriate Schedules at the time of acquisition.
(g) The term “Assets” does not include, and sales Seller is not selling to Purchaser, (i) any cash or promotional materials cash equivalents, deposits, accounts receivable, trademarks, service marks or trade names of Seller, (ii) any interests of Seller in oil and gas properties, any other property or assets including, but not limited to, cash and accounts receivable of Seller not used in the operation of Seller’s Drilling Business, (iii) any asset (including any contract or agreement) not otherwise included in the definition of the term “Assets” in Sections 1(a)-(f), (iv) Seller’s minute books and governance documents, tax returns and historical financial statements, (v) any other books and records of the Seller that relate to the Business;
2.1.8 all of ArrowSeller’s tangible assets primarily relating to the Drilling Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent such other books and records are not Business Records (as hereinafter defined)), (vi) the same may be transferred; and
2.1.13 all real property located at 0000 Xxxxxx, Xxxxx Xxxx, Xxxxxx 00000, (vii) any assets that Seller is required by law to retain and (viii) the 2001 Audi A6 automobile, (ix) the xxxxxxx that existed on or about April 17, 2004 and any insurance proceeds received as a result of Arrow’s other tangible the destruction of such xxxxxxx and intangible (x) those assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries described on Schedule 1(h) (collectively, the “Dagger Subsidiary SharesExcluded Assets”).
Appears in 1 contract
Purchase and Sale of Assets. Upon and subject (a) Pursuant to the terms and conditions hereofprovisions contained herein, at the ClosingSeller hereby agrees to sell, Arrow shall sellassign, transfer and assign convey to Acquisition SubBuyer at Closing (as defined hereafter), and Acquisition Sub shall Buyer hereby agrees to purchase from Seller at Closing, certain properties, assets and acquire from Arrowrights of Seller as described as follows, and as additionally identified on EXHIBIT A attached hereto and incorporated herein by reference:
(i) All cash and cash equivalents of Seller;
(ii) All Seller's trade accounts receivable as of the date of Closing;
(iii) All of Seller's inventory (the "Disposable Inventory") of construction tools and supplies and samples;
(iv) All of Seller's equipment inventory (the "Equipment Inventory"; the Disposable Inventory and the Equipment Inventory are sometimes hereinafter collectively referred to as the "Inventory");
(v) All right, title and interest, if any and of whatever kind or character, of Seller in and to all customer lists, customer files, customer information, marketing and promotional materials, manuals, marketing studies or analysis or any other records or memorandum relating in any manner whatsoever to Seller's customers (the "Customers") or sales of the Inventory (hereinafter collectively referred to as the "Customer Lists");
(vi) All original files, books and records of Seller with respect to the Customers and Customer Lists including, without limitation, all Customer files, Customer account histories, Customer purchasing and payment history, Customer credit files, etc., as well as a list of all current and previous suppliers or manufacturers to the Business within the past two (2) years with purchases in excess of Five Thousand and 00/100 Dollars ($5,000.00) per year;
(vii) To the extent such are assumable, all right, title and interest of Seller as of the date of Closing in, to and under the contracts, leases, franchises, agreements, arrangements, understandings, commitments and business relationships (hereinafter collectively referred to as the "Contract Rights") and all of Seller's rights (including rights of refund and offset), deposits, privileges, claims, causes of action and options relating to or pertaining to the Contract Rights; PROVIDED, HOWEVER, except as is provided otherwise herein in Section 1.1(c), Buyer does not and shall not assume any liability or responsibility relating to, or arising in connection hereby with any such Contract Rights;
(viii) All of Seller's right, title and interest in and to the assets utilized in connection with the performance any and technical all income and administrative support payments due Seller arising out of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the date of Closing;
2.1.6 (ix) To the extent transferable, all right, title and interest of Seller as of the rights in or relating date of Closing in, to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 and under all of Arrow’s training materials, speaking materials permits and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits licenses relating to the Business or all or any of the Dagger FacilitiesAssets (as defined below);
(x) All right, including title and interest of Seller in and to all prepaid rentals and other prepaid expenses, receivables from employees, bonds, deposits and financial assurance requirements relating to any of the permits listed on Schedule 2.1.12Assets or the Business;
(xi) All right, title and interest of Seller in and to any benefit of and the right to enforce the covenants and warranties, if any, the Seller is entitled to enforce with respect to the Assets against Seller's predecessors and title to the Assets;
(xii) All of Seller's right, title and interest in the name "North State Supply Co. of Phoenix," "North State Supply" and all related and similar names, logos and trade names including, without limitation, any of Seller's corporate, copyright, trademark, trade name and service xxxx rights and interest in such names, logos and trade names;
(xiii) All right, title and interest of Seller in, to and under all rights, privileges, claims, causes of actions and options relating or pertaining to the extent Business or the same may be transferredAssets;
(xiv) All right, title and interest of Seller in and to the goodwill of the Business and Seller;
(xv) Seller's business address;
(xvi) Seller's "800" and "888" telephone numbers and all business telephone numbers;
(xvii) All right, title and interest of Seller in and to the leasehold interest of Seller's commercial lease (the "Real Property Lease"), a copy of which is attached hereto as SCHEDULE 1.1(A)(XVII)(I), the Piney Xxxxx mail equipment lease and the computer hardware and software leases; and
2.1.13 all (xviii) Seller's internet web page and registered internet domain name, if any. All of Arrow’s other tangible the assets, properties and intangible assets related rights listed in this subparagraph (a) shall hereinafter be referred to collectively as the "Assets."
(b) Notwithstanding anything to the Businesscontrary contained herein, the Assets shall not include (i) the original corporate minute book of Seller; (ii) all claims of Seller for refunds for any income taxes (whether federal, state, local, foreign or other) applicable to periods prior to the or after the date of Closing; (iii) any rights accruing as a result of, or any proceeds paid or payable in accordance with the Agreement; (iv) any and all insurance proceeds and insurance claims of Seller, except for proceeds and claims relating to any damage, loss or casualty to the Assets accruing after the execution of this Agreement but prior to the date of Closing; or (v) the assets and contracts specifically listed on SCHEDULE 1.1(B) hereto (hereinafter collectively referred to as the "Excluded Assets").
2.1.14 all (c) It is expressly understood and agreed among the parties hereto that Buyer is not assuming, and shall not be deemed to assume, any liabilities of Arrow’s capital stock and other voting interests in Seller relating to the Dagger Subsidiaries Assets or arising out of the Business, except those specifically listed on SCHEDULE 1.1(C) hereto (collectively, the “Dagger Subsidiary Shares”"Assumed Liabilities").
Appears in 1 contract
Samples: Asset Purchase Agreement (Abatix Environmental Corp)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofset forth in this Agreement, at the Closing, Arrow Seller shall sellcause to be sold, transfer assigned, transferred, conveyed and assign delivered to Acquisition Sub, Purchaser good and Acquisition Sub shall purchase and acquire from Arrow, valid title to all of Seller’s right, title and interest in and to the assets utilized Purchased Assets, free of any Liens, on the terms and subject to the conditions set forth in this Agreement and in accordance with Sections 363 and 365 of the Bankruptcy Code, and Purchaser hereby agrees to purchase, acquire and, solely in the case of the Transferred Agreements, to assume from Seller, all of the following:
(a) the Yu-Gi-Oh! Business;
(b) all Intellectual Property related to or used in connection with the performance and technical and administrative support of the Yu-Gi-Oh! Business, including the following assets Trademarks, Copyrights and other items set forth on Schedule 2.1(b) and all other intellectual property rights, proprietary rights, moral rights, rights of publicity and likeness, and other analogous rights, that arise out of or are associated with or may be created or exist under the Laws of any jurisdiction throughout the world, trade secrets, business methods, processes, know-how, patents, databases and data collections whether owned by Seller or which Seller has the right to use, in each case, in connection with the Yu-Gi-Oh! Business, including in connection with the episodes, productions and exploitations;
(c) all masters, negatives and prints of the Yu-Gi-Oh! Productions, and all promotional materials, artwork, style books, production stills, logos, scripts, screeners, closed caption files, merchandise samples, costumes, and all live event props and materials, music cue sheets and similar materials and documents (in paper, digital or electronic format) relating to the episodes and productions, owned by Seller or which Seller has the right to use and which are in Seller’s care, custody or control (the “Dagger Tangible Assets”) and in particular those masters set forth on Schedule 2.1(c);
(d) the Internet domain names owned by Seller or which Seller has the right to use in connection with the Yu-Gi-Oh! Business, in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers are listed on Schedule 2.1.1 2.1(d) (the “Dagger EngagementsDomain Names”);
2.1.2 (e) all contracts Website Assets;
(f) all Publishing Assets;
(i) all Copyrights in the music and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to sound recordings created by or on behalf of Seller, its predecessor or an Affiliate of Seller and specifically for inclusion in any episode of the Business, excluding Yu-Gi-Oh! Productions and (ii) all rights of Seller or its Affiliates under synchronization and master use licenses for music contained in the contracts and other arrangements listed on Schedule 2.1.2 Yu-Gi-Oh! Productions (the “Dagger Completed EngagementsMusic Rights”);
2.1.3 (h) the Transferred Agreements;
(i) all goodwill associated with all the Transferred IP, and all other contracts goodwill related to all other Purchased Assets;
(j) all documents and records (in paper or electronic format) in Seller’s or any of Seller’s Affiliates’ care, custody or control relating exclusively to the Yu-Gi-Oh! Business or the Other Assets and to which Arrow is a partyany other Purchased Asset (collectively, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements “Books and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger LeasesRecords”);
2.1.5 (k) All Chapter 5 Claims, Rights and Causes of Action in any way related to the Purchased Assets or Transferred Agreements.
(l) causes of action and claims whether accruing or arising prior or subsequent to the Closing Date with respect to any Purchased Assets, but excluding (i) any causes of action or claims that were resolved pursuant to the proceeding entitled TV Tokyo Corporation and Nihon Ad Systems, Inc. v. 4Kids Entertainment, Inc., Adv. Pro. No. 11-02225 (SCC) that was formerly pending in the United States Bankruptcy Court for the Southern District of New York and the settlement entered into with respect to all prepaid expensesclaims in such matter and the dismissal of the litigation with prejudice (the “Settled Action”) and (ii) all Chapter 5 Claims, depositsRights and Causes of Action not in any way related to the Purchased Assets or Transferred Agreements;
(m) the owned machinery, advancesequipment, other prepayments recording/editing equipment (for the avoidance of doubt including the Avids/ProTools), computer and information technology equipment and related rights paid data, and all software owned by Seller or obtained by Arrow relating which Seller has the right to use (subject only to customary shrinkwrap licenses) in connection with the Yu-Gi-Oh! Business, the Other Assets, CW Agreement and the obligations and deliverables thereunder which are listed on Schedule 2.1(m); provided, that the parties hereto acknowledge and agree that all tangible assets included in this Section 2.1(m) shall be physically delivered to the BusinessPurchaser at a date following the Closing Date pursuant to the terms of the Transition Services Agreement, (other than thoseand that the Transition Services Agreement shall include the right for Seller to use and operate the items included in this Section 2.1(m) to the extent needed to provide services thereunder and a non-exclusive, if any, which constitute royalty-free license to Seller to continue to use the software included in this Section 2.1(m) solely for purposes of operating the Excluded Assets under Section 2.2) that exist as of following the Closing;
2.1.6 (n) all cash and accounts receivable relating to the Purchased Assets arising from events or circumstances occurring (1) on or after May 1, 2012 (for the avoidance of doubt, including but not limited to, royalties and marketing fees on the sale of Yu-Gi-Oh! merchandise and trading cards occurring on or after May 1, 2012, the Seller’s share of national advertising proceeds from the broadcast of commercials on or after May 1, 2012 on the five hour Saturday morning block of programs telecast on The CW Network and revenues from the Internet streaming of Yu-Gi-Oh! episodes on Hulu on or after May 1, 2012 are part of the Yu-Gi-Oh! Assets being transferred by Seller to Purchaser) and (2) between April 1, 2012 and June 30, 2012 in excess of the Seller Q2 Portion, except to the extent that cash is deducted from the Purchase Price pursuant to Section 3.3;
(o) all income, royalties, fees, products, proceeds, damages and payments due or payable to Seller as of the Closing or thereafter relating to the Purchased Assets, including damages and payment for past, present or future infringements, misappropriations or other causes of actions, the right to xxx or recover for past infringements and misappropriation of the Purchased Assets and all of Seller’s rights to be indemnified with respect to the Purchased Assets;
(p) the following rights in or relating to intellectual property the Library Assets as more specifically described in Schedule 2.1(p): (i) all rights of Seller under the Ancillary Agreement relating to intellectual propertydated as of February 15, the form of which is attached as Exhibit 2002 among Seller, Daiwon C & A Holdings Co., Ltd (the “Intellectual Property DWCA”), Cinepix, Inc. (“Cinepix”) and East Japan Marketing & Communications, Inc. (“Cubix Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business Cubix television series, subject to the Cubix license agreements set forth on Schedule 5.8; (other than those tangible assetsii) all rights of Seller under (x) the Piñata Term Sheet, if anydated as of January 13, which constitute Excluded Assets under Section 2.22006, between 4Kids Entertainment, Inc. and Microsoft, Inc., as amended, (“Piñata Term Sheet”) and (y) the Viva Piñata Co-Venture Agreement, dated as of January 16, 2006, as amended, between 4Kids Entertainment, Inc. and Bardel Entertainment Inc. (“Bardel Agreement”), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business Viva Piñata property and all other tangible assets as materially listed television series, subject to the Viva Piñata license agreements set forth on Schedule 2.1.8 5.8; and (iii) all of Seller’s rights under the Dragon Ball Term Sheet dated March 15, 2010 between 4Kids Entertainment, Inc. and Toei Animation Inc., represented by Funimation Productions, Ltd, as amended by a letter agreement dated February 16, 2011 (“Dagger Tangible AssetsDBZ Agreement”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger AssetsDragon Ball Z Kai series. The Piñata Term Sheet and Bardel Agreement and the DBZ Agreement are collectively referred to as the “Library Agreements”.
(q) Cabbage Patch Kids residual royalty (2% royalty on Jakks Pacific sales as provided under the Jakks Pacific – 4Kids Merchandising Deal Memo dated as of August 18, including all records and documents 2010) to the extent relating to the Dagger Engagementsevents or circumstances occurring on or after April 1, 2012;
(r) Pajanimals reimbursement of production expenses and share of net receipts (reimbursement of certain remaining money advanced by the Dagger ContractsCompany to The Xxx Xxxxxx Company in connection with the production of the original interstitial episodes of Pajanimals and 10% of net receipts royalty, as provided under an amendment to the Dagger ReceivablesPajanimals Agreement dated as of February 14, the Dagger Work-In-Process 2011 between The Xxx Xxxxxx Company and the Dagger Obligations Company) to the extent received on or after April 1, 2012;
(provided that Arrow may retain copies s) Thundercats participation as set forth under an agreement dated June 15, 1984 between Leisure Concepts, Inc. (the predecessor of such booksthe Company) and Telepictures (ultimately acquired by Warner Bros. as part of the Lorimar acquisition) as modified by a March 6, papers1992 settlement agreement between Leisure Concepts, ledgers, documents Inc. and records), as well as complete copies of all other books, papers, ledgers, documents and records Lorimar Telepictures to the extent relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business events or the Dagger Facilitiescircumstances occurring on or after April 1, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred2012; and
2.1.13 all (t) All rights of Arrow’s other tangible and intangible assets related Seller to the Business.
2.1.14 all Xxxxxxx Xxxx property (“Xxxxxxx Xxxx”) (subject to the Agreement for Purchase of Arrow’s capital stock Literary Material dated as of August 23, 2000 and other voting interests between Twentieth Century Fox and the Company). All of the assets referred to in the Dagger Subsidiaries Section 2.1(a) through (collectivelyt), inclusive, are collectively referred to herein as the “Dagger Subsidiary SharesPurchased Assets.” All assets referred to in Section 2.1(o) through (t), inclusive, are collectively referred to herein as the “Other Assets”).
Appears in 1 contract
Samples: Asset Purchase Agreement (4 Kids Entertainment Inc)
Purchase and Sale of Assets. Upon On the terms and subject to the terms conditions of this Agreement, Seller hereby irrevocably assigns, conveys, sells, grants and conditions hereoftransfers, at the Closingand Seller shall cause each of its applicable Affiliates to assign, Arrow shall convey, sell, transfer grant and assign transfer, to Acquisition SubPurchaser and its successors and assigns, free and Acquisition Sub shall purchase and acquire from Arrowclear of all Encumbrances, all right, title and interest in in, to and under the assets, properties, contractual rights, going concern value, rights and claims of Seller, wherever situated and of whatever kind and nature, real or personal, tangible or intangible, whether or not reflected on the books and records of Seller, the following rights, assets and properties (other than the Excluded Assets) (collectively, the “Purchased Assets”):
(a) the Technology and Intellectual Property Rights that are listed on the Purchased Intellectual Property Schedule (collectively, the “Purchased Intellectual Property”);
(b) all of the Contracts set forth on the Purchased Contracts Schedule (collectively, the “Purchased Contracts”), including all claims or causes of action with respect to such Purchased Contracts;
(c) all Documents to the assets utilized in connection with extent solely related to the performance Purchased Assets, Assumed Liabilities or the Business (other than the European Business), including Documents relating to products, services, marketing, advertising and technical and administrative support promotional materials of the Business, including the following assets (Business Services, the “Dagger Assets”)Purchased Intellectual Property, in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating customer lists related to the Business pursuant setting forth, to which Arrow is providing goods and/or servicesthe extent available, each customer’s name, address, other contact information, order history and credit level, installer and partner lists setting forth, to the extent available, name, address, other contact information, order history and dealer program status and history, and all proposalspersonnel files for Transferred Employees (subject to the prior written consent of the applicable Transferred Employee) (collectively, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts Purchased Books and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger ContractsRecords”), but excluding the Dagger LeasesExcluded Documents;
(d) all (i) instances of marketing, regardless of whether Arrow has obtained any necessary consents sales and customer relationship management software, including Salesforce and Hubspot (collectively, the “Sales Platforms”) and (ii) the websites and social media accounts listed on the Purchased Intellectual Property Schedule;
(e) all goodwill as solely related to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses Purchased Assets or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assetsthe European Business);
(f) any rights, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements claims or causes of action of Seller against any Person relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business Purchased Assets or the Dagger FacilitiesAssumed Liabilities, including the right to enforce all Purchased Intellectual Property and the right to sue (and seek and retain damages) for infringement, misappropriation or other violation or unlawful use (including past infringement, misappropriation or other violation or unlawful use) of such Purchased Intellectual Property;
(g) all Business Permits;
(h) all product permits listed set forth on the Product Permits Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary SharesProduct Permits”); and
(i) all other assets set forth on the Other Purchased Assets Schedule.
Appears in 1 contract
Samples: Asset Purchase Agreement (Maxeon Solar Technologies, Ltd.)
Purchase and Sale of Assets. (a) Upon the terms and subject to the terms and conditions hereofof this Agreement, at the Closing, Arrow Seller shall sell, assign, transfer and assign convey to Acquisition SubPurchaser, and Acquisition Sub Purchaser shall purchase purchase, assume and acquire accept from ArrowSeller, on an “as is, where is” basis, free and clear of all Encumbrances other than Permitted Encumbrances, the following listed Seller’s rights, titles and interest in and to the assets, rights and properties of every nature, kind and description, tangible and intangible, wherever located, whether or not carried on the books of Seller exclusively relating to CVAC and the CVAC Products (for the avoidance of doubt: in particular, but without limitation, the Excluded Assets are explicitly excepted) (collectively, the “Purchased Assets”) by concluding the Transfer Agreement at Closing (with regard to the Transferred Contracts only if the third party consent has been obtained until Closing pursuant to ):
(i) all inventory of the CVAC Products and their components, wherever located, held by Seller, including raw materials, work in process, samples, packaging, supplies, carriers, matrices, cell lines, vectors, clones, services parts, ancillary devices used, for example, in methods using the CVAC Products, purchased parts and goods, damaged and fragmented or expired inventory, as listed on Schedule 2.03(a)(i) (the “Inventory”) and the machinery and equipment (including all manufacturing equipment, cell culture equipment, protein purification equipment, assembly equipment and laboratory and testing equipment used for research and development) and other tangible personal property related to the CVAC Products as well listed on Schedule 2.03(a)(i);
(ii) all rights and incidents of interest of, and benefits accruing to, the Seller under the DBI-Development Agreement and the Supply, Distribution and Licensing Agreement between Seller and Neopharm Ltd. dated 19 February 2014 („Neopharm Agreement“ and together with the DBI-Development Agreement the “Transferred Contracts”);
(iii) books, files, papers, correspondence, documents, databases, software, reports, laboratory notebooks, plans and records in Seller’s possession that are (aa) exclusively related to the CVAC Products, Purchased Assets relating to CVAC and Assumed Liabilities relating to CVAC; or (bb) related to the Further Know-How in particular, but without limitation, as listed in the dataroom index in the course of the due diligence as of 30 April 2016 attached as Schedule 2.03(a)(iii) (the “Transferred Books and Records”);
(iv) all claims, causes of action, defenses and rights of offset or counterclaim (at any time or in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or noncontingent) relating solely and exclusively to any of the Purchased Assets;
(v) all of Seller's rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
(vi) the goodwill of Seller relating to the Purchased Assets; and
(b) Notwithstanding anything in to the contrary, Seller shall not sell, convey, assign or transfer, nor cause to be sold, conveyed, assigned or transferred, to Purchaser, and Purchaser shall not purchase, and the Purchased Assets shall not include, Seller’s right, title and interest in and to any assets of Seller not expressly included in the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets Purchased Assets (the “Dagger Excluded Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrancesincluding without limitation:
2.1.1 (i) the CVAC License;
(ii) the Licensed Know-How;
(iii) all contracts Cash and other arrangements relating to Cash Equivalents;
(iv) all rights of Seller and its Affiliates under this Agreement and the Business pursuant to which Arrow is providing goods and/or services, Ancillary Agreements;
(v) all current and prior insurance policies of Seller and its Affiliates and all proposals, bids and offers for future such contracts and arrangementsrights of any nature with respect thereto, including the contracts all insurance recoveries thereunder and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”)rights to assert claims with respect to any such insurance recoveries;
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 vi) all prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, advancescharges, other prepayments sums and related rights paid or obtained by Arrow fees (including any such item relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2payment of Taxes) that exist as relating to any of the ClosingPurchased Assets;
2.1.6 (vii) all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials accounts and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferrednotes receivable; and
2.1.13 (viii) all claims, causes of Arrow’s other tangible action, defenses and intangible assets related rights of offset or counterclaim (at any time or in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or noncontingent) not relating solely and exclusively to any of the BusinessPurchased Assets.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Sub License, License and Asset Purchase Agreement (Sydys Corp)
Purchase and Sale of Assets. Upon Except for the Excluded Assets, upon the terms and subject to the terms and satisfaction of the conditions hereofcontained in this Agreement, at the Closing, Arrow the Sellers shall sell, assign, convey, transfer and assign deliver to Acquisition Subthe Buyer, and Acquisition Sub shall the Buyer shall, by payment of the Purchase Price, purchase and acquire from Arrowthe Sellers, free and clear of all Claims, Interests and Encumbrances (except for Closing Encumbrances), all of the right, title and interest that the Sellers possess as of the Closing and have the right to transfer in, to and under the real, personal, tangible and intangible property or assets of every kind and description, wherever located, used, developed for use or intended for use primarily in the conduct of the Business and related thereto, unless specifically excluded in Section 2.2 (collectively, the "Purchased Assets"). Without limiting the effect of the foregoing, the parties hereto acknowledge and agree that the Purchased Assets shall include all right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support of the BusinessSellers in, including to and under all of the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and primarily related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assetsexcept the Excluded Assets):
(a) all inventories of supplies, if any, which constitute Excluded Assets under Section 2.2), including materials and spare parts;
(b) all furniture, fixtures, equipment;
(c) all machinery, office vehicles, furniture and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”)personal property;
2.1.9 (d) all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (Sellers' Accounts Receivable as of the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively)Closing Date;
2.1.10 all books(e) the Assumed Agreements, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12in each case, to the extent the same are assignable under Section 365 of the Bankruptcy Code or to the extent such assignment is consented to by the third party or third parties to such agreements (if required), including purchase orders and (subject, in the case of deposits and letters of credit of the Sellers with third parties, to reimbursement or replacement as provided in Section 2.5(d)) any and all deposits and letters of credit related to any such Assumed Agreement;
(f) the Permits, in each case to the extent the same are assignable (the "Transferable Permits");
(g) the Intellectual Property Agreements and all confidentiality, noncompete or nondisclosure agreements executed by vendors, suppliers or employees of the Sellers or other third parties, in each case, to the extent assignable under Section 365 of the Bankruptcy Code, if required, or to the extent such assignment is consented to by the third party or third parties to such agreements (if required);
(h) originals or copies of all Employee Records maintained by the Sellers and all books (other than books referred to in Section 2.2(e)), operating records, operating, safety and maintenance manuals, engineering design plans, blueprints and as-built plans, specifications, procedures and similar items relating specifically to the Purchased Assets, including books of account, all customer lists, billing records and other customer correspondence and all regulatory filings and other books and records relating to the rates and services provided by the Sellers in connection with the operation of the Business;
(i) except as set forth on Schedule 2.2(d) and subject to Section 2.2(d), all of the rights, claims or causes of action of the Sellers against any third party that primarily relates to the Purchased Assets, the operation of the Business, the Assumed Liabilities, or the Assumed Agreements, arising out of transactions occurring prior to the Closing Date, except where such rights, claims or causes of action relate to Excluded Liabilities; to the extent such rights, claims or causes of action relate to both Assumed Liabilities and Excluded Liabilities, the Buyer and the Sellers shall share such rights, claims or causes of action in the same proportion as their respective liabilities bear to the total liability relating to those rights, claims or causes of action;
(j) all Intellectual Property to the extent assignable under Section 365 of the Bankruptcy Code, together with all related income, royalties, damages and payments due or payable at the Closing or thereafter (including damages and payments for past or future infringements or misappropriations thereof), the right to sue and recover for past infringements or misappropriatioxx thereof, any and all corresponding rights that, now or hereafter, may be transferredsecured throughout the world and all copies and tangible embodiments of any such Intellectual Property;
(k) the rights of the Sellers under those insurance policies which primarily cover risks covering the Business or the Purchased Assets to the extent assignable under Section 365 of the Bankruptcy Code or to the extent consented to by the insurance providers (if required); provided that to the extent that the rights to any insurance proceeds relate to a claim against the Sellers that is not an Assumed Liability, the Sellers shall retain the rights to such insurance proceeds and the Sellers shall not transfer the rights to such insurance proceeds to the Buyer;
(l) all accounts of the customers of the Business which, at the Closing Date, are users of any of the services provided by the Sellers in the operation of the Business;
(m) all rights under postpetition purchase orders; and
2.1.13 all of Arrow’s other tangible (n) that certain escrow fund created and intangible assets related those escrow fund amounts now held pursuant to the BusinessStock Purchase Agreement by and among ITI (as successor to Insilco Corporation), EFI, EFI Metal and the Shareholders of EFI dated January 24, 1999.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofand in reliance upon the representations and warranties of the Sellers contained in this Agreement, at the Closing, Arrow the Sellers shall sellassign, transfer transfer, convey and assign deliver to Acquisition Subthe Purchaser, and Acquisition Sub the Purchaser shall purchase and acquire from Arrowthe Sellers, all of the Sellers' right, title and interest in in, to and under all of the assets of the Sellers used, useful or necessary to the operation of the Business as presently conducted ("Acquired Assets"). The Acquired Assets include, without limitation, the following assets, together with replacements thereof and additions thereto made between the date hereof and the Closing Date (as defined herein), whether or not on the books and records of the Sellers:
(a) All furniture, fixtures, equipment, inventory and all other tangible assets utilized and personal property, owned or leased by the Sellers, which is used, useful or necessary in or to the operation of the Business which is located at 0000 Xxxx Xxxxxx Xxxxxx, Xxxx 00, Xxxxxx, Xxxxxxxx;
(b) All of the Sellers' contracts including, without limitation, the Material Contracts (as defined herein) listed on the Disclosure Schedule (as defined herein) and intangible property rights relating to the Business, including, without limitation, (i) proprietary information, trade secrets and confidential information, technical information and data; (ii) machinery and equipment warranties related to the Acquired Assets; (iii) rights in any causes of action related to or in connection with wit the performance and technical and administrative support Acquired Assets; (iv) all other documentation relating to the operation of the Business, including all licenses, permits and approvals issued by any governmental authority or otherwise necessary or relating to the following operation of the Business which are transferable; and (v) the goodwill and going concern value of the Business;
(c) All of the Sellers' books and records related to the operation of the Business, including, without limitation: (i) all policy and procedure manuals; (ii) all financial, accounting and property tax records; (iii) all computer data and programs; (iv) all market data; and (v) all correspondence with and documents pertaining to suppliers, governmental authorities and other third parties; provided, however, the Sellers shall have the right to have access to such books and records during normal business hours in order to complete Tax Returns or other required governmental filings;
(d) All client, employee and patient lists and files kept in the ordinary course operation of the Business; and
(e) All other assets (tangible and intangible) owned by the “Dagger Assets”Sellers and used, useful or necessary in or to the operation of the Business as presently conducted and not otherwise an Excluded Asset (as defined herein). Subject to Section 2.3 below, in each case the Acquired Assets shall be assigned and transferred to Purchaser at Closing free and clear of all Security Interestsliens, except security interests, charges, encumbrances and rights of others (each, an "Encumbrance") other than Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Asset Purchase Agreement (Interwest Home Medical Inc)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Seller shall, and Shareholder shall cause Seller to, sell, transfer assign, transfer, convey and assign deliver to Acquisition SubBuyer, and Acquisition Sub Buyer shall purchase from Seller, free and acquire from Arrowclear of any Encumbrances, all of Seller’s right, title and interest in in, to and to under all of the assets utilized assets, properties and rights of every kind and nature, whether real, personal or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired (other than the Excluded Assets), which relate to, or are used or held for use in connection with with, the performance and technical and administrative support of the BusinessBusiness (collectively, including the following assets (the “Dagger Purchased Assets”), in each case free and clear of all Security Interestsincluding, except Permitted Encumbranceswithout limitation, the following:
2.1.1 (a) all contracts inventory, finished goods, raw materials, work in progress inventory (“WIP”), packaging, supplies, parts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 inventories (the “Dagger EngagementsInventory”);
2.1.2 (b) all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating Contracts set forth on Schedule 2.01(b)(i) (to the Businessextent assignable, excluding the “Assigned Contracts”) and the economic rights and benefits associated with those contracts and other arrangements listed on Schedule 2.1.2 2.01(b)(ii), which are the Contracts that are not assignable to Buyer (such Contracts, the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Subcontracted Contracts”), but excluding and are being subcontracted to Buyer in accordance with the Dagger Leases, regardless terms and conditions of whether Arrow has obtained any necessary consents to the assignment of such Dagger ContractsSubcontractor Agreement;
2.1.4 (c) all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”)Intellectual Property Assets;
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2d) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, equipment, machinery, tools, vehicles, office equipment, supplies, computers, telephones and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed personal property, including, without limitation, those set forth on Schedule 2.1.8 2.01(d) (the “Dagger Tangible AssetsPersonal Property”);
2.1.9 (e) all rights to any Actions of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate any nature available to or being pursued by Seller to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies extent related to the Business, or the Purchased Assets, whether arising by way of counterclaim or otherwise;
2.1.12 (f) all Permits of Seller’s rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
(g) originals, or where not available, copies, of all books and records, including, but not limited to, books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, drawings (soft or hard), memoranda, manuals, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferredIntellectual Property Assets (“Books and Records”); and
2.1.13 (h) all goodwill and the going concern value of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. Upon On the terms and subject to the terms and conditions hereofherein set forth, at the ClosingClosing (as such term is hereinafter defined), Arrow the Seller shall sell, transfer transfer, convey, assign and assign deliver to Acquisition SubBuyer, and Acquisition Sub the Buyer shall purchase and acquire from Arrowaccept delivery of, all rightof the tangible and intangible assets and properties of every kind and description, title wherever located, of and in any way related to, the Seller's business, as of the Closing Date (as such term is hereinafter defined), owned by the Seller or in which the Seller has an interest, other than those assets specifically excluded pursuant to Section 1.2 of this Agreement, such as the real estate subject to the Passaic Lease. Such assets and properties of the Seller to be purchased by the Buyer as herein provided shall include, without limiting the generality of the foregoing, the following:
(a) all cash, accounts receivable, inventories of materials and products, supplies, spare parts, shipping materials, packaging, advance payments, deposits and other prepaid items, security deposits and credits;
(b) all of the Seller's interest as lessor and as lessee in the Leases (as such term is defined in Section 3.13(a) hereof);
(c) all furniture, fixtures, computer hardware and software, machinery, tools, parts, office equipment, automobiles, trucks and vehicles; 7
(d) any and all patents of the Seller, including without limitation, the patents described in Section 3.12(a) of the Disclosure Schedule which is attached hereto and forms a part of this Agreement (the "Disclosure Schedule"), trademarks, trade names (including, but not limited to, the name of the Seller, service marks and copyrights and all registrations, applications and other rights associated with the foregoing, including the right to sue xxx past infringement;
(e) all books and operations records, including but not limited to, all personnel files;
(f) all designs, plans, trade secrets, inventions, procedures, research, records, processes know-how, and similar information wherever located (collectively, the "Know-How");
(g) all of the Seller's interest in and to the assets utilized in connection with the Seller's telephone, facsimile and telex (if any) numbers and telephone and other directory listings;
(h) all stationery, purchase order and other forms, labels, shipping materials, catalogs, brochures, art work, photographs, sales literature, promotional literature, marketing materials and advertising material;
(i) all performance and technical and administrative support bonds of the Business, including Seller;
(j) all of the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 Seller's rights under all contracts and other arrangements relating agreements, including insurance policies;
(k) that certain promissory note from ACA Realty Company payable to the Business pursuant to which Arrow is providing goods and/or servicesSeller dated April 26, and all proposals1996 in the original principal amount of $600,000, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 together with interest accrued thereon (the “Dagger Engagements”"Promissory Note");
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 (l) all of Arrow’s other tangible and intangible personal property and assets related of the Seller, including without limitation, the Seller's goodwill, franchises (other than the Seller's franchises as a corporation), permits and licenses, including a license to use any and all patents owned or used by the Seller which are used by the Seller in its business, customer lists, rights of offset, causes of action, defenses, judgments, claims and demands of any nature, benefits due to the Business.
2.1.14 Seller under its policies of insurance and fidelity bonds with respect to all events and periods prior to the Closing Date, in respect of Arrow’s capital stock which any third party may seek to impose liability on Buyer, restrictive covenants, confidentiality obligations and similar obligations of present and former shareholders, officers and employees, all books, files, papers, records and other voting interests data of the Seller (or, at the Seller's election and expense, accurate and complete copies thereof) and all other property and rights of every kind or nature of the Seller whether or not specifically referred to in this Agreement and whether or not carried on the Dagger Subsidiaries books of the Seller as an asset. The aforesaid assets and properties to be transferred to the Buyer hereunder are collectively referred to herein as the "Assets," and the Assets as of the date of the Unaudited Financial Statements (collectively, as hereinafter defined) are listed in Section 1.1 of the “Dagger Subsidiary Shares”)Disclosure Schedule.
Appears in 1 contract
Samples: Asset Purchase Agreement (Kti Inc)
Purchase and Sale of Assets. (a) Upon the terms and subject to the terms conditions of this Agreement, except as otherwise provided in Section 1.1(b), on the Closing Date, Buyer shall purchase (or cause its designee(s) to purchase) from Sellers, and conditions hereof, at the Closing, Arrow Sellers shall irrevocably sell, transfer convey, transfer, assign and assign deliver to Acquisition SubBuyer (or its designee(s)) (subject to Section 6.9), free and Acquisition Sub shall purchase and acquire from Arrowclear of all Encumbrances other than Permitted Encumbrances (excluding clause “e” of the definition thereof), all of Sellers’ right, title and interest in and to all of Sellers’ (x) tangible and intangible assets, properties and rights used or held for use primarily in the assets utilized operation of the Bens Run Facility and the Specialty Facility on the Closing Date and (y) tangible and intangible assets, properties and rights used or held for use primarily in the operation of the Hannibal Facility as described below, in each case other than the Excluded Assets (collectively, the “Assets”). For purposes of this Agreement, the Assets shall include, but not be limited to the following, as of the Closing Date:
(i) (A) all right, title and interest of Sellers in all personal property used or held for use by Sellers primarily in the operation of the Bens Run Facility and the Specialty Facility as set forth on Schedule 1.1(a)(i)(A), including, without limitation, fixtures, furnishings, furniture, office supplies, tools, machinery, vehicles, equipment, computer equipment and other tangible personal property, and (B) all right, title and interest of Sellers in the personal property set forth on Schedule 1.1(a)(i)(B) which is used or held for use by Sellers at the Hannibal Facility;
(ii) all right, title and interest of Sellers in inventory relating primarily to the operation of the Facilities, including, without limitation, all materials and stores/ supplies, all work in process and all finished products including all such inventory in transit or on consignment which is owned by Sellers as of the Closing Date (the “Inventory”);
(iii) all Bens Run and Specialty Permits, including the Permits set forth on Schedule 3.4(a) (other than such Permits as are set forth on Schedule 1.1(b)(vi)), to the extent transferable by applicable Law;
(iv) except as set forth on Schedule 1.1(a)(iv), all Seller Intellectual Property (including the right to damages for past infringement), including the Seller Intellectual Property set forth on Schedule 3.6(a);
(v) all of Sellers’ rights under Contracts or oral contracts or agreements with customers and suppliers with respect to the Facilities, all operating leases for tangible personal property with respect to the Bens Run Facility and the Specialty Facility, including the Contracts set forth on Schedule 3.8, all capital leases with respect to the Bens Run Facility and the Specialty Facility set forth on Schedule 1.1(a)(v) (the “Assumed Capital Leases”), all real property leases with respect to the Bens Run Facility and the Specialty Facility set forth on Schedule 1.1(a)(v), and all other Contracts set forth on Schedule 1.1(a)(v) (collectively, the “Assigned Contracts”), in each case other than the Excluded Contracts and any Contracts not entered into in compliance with Section 5.3(b);
(vi) all of Sellers’ customer, supplier and vendor lists to the extent they are used or held for use, primarily in the operation of the of the Facilities, all of Sellers’ files and documents (including credit information) to the extent relating to customers and vendors of any Facility, and all of Sellers’ production data, equipment maintenance data, accounting records, inventory records, sales and sales promotional data, advertising materials, cost and pricing information, business plans, reference catalogs, information (including but not limited to design specifications), cage codes and any other such data and records, in each case to the extent relating to any Facility, including without limitation any such material on Sellers’ computer systems or maintained in electronic format;
(vii) any prepaid expenses, utility, security and/or other deposits (other than those set forth in Section 1.1(b)(i) below) paid primarily in connection with the performance and technical and administrative support operation of the BusinessBens Run Facility or the Specialty Facility and in existence as of the Closing Date, including except as set forth on Schedule 1.1(a)(vii) and except as such expenses pertain to any Excluded Assets;
(viii) all of Sellers’ right, title and interest in accounts receivable and notes receivable (other than intercompany notes, drafts or receivables) arising primarily from the operation of the Facilities and in existence as of the Closing (the “Accounts Receivable”);
(ix) all goodwill associated with the Bens Run Facility and the Specialty Facility;
(x) all Owned Real Property set forth on Schedule 3.5(a); and
(xi) all rights of Sellers pursuant to any express or implied warranties, representations or guarantees made by suppliers, manufactures and contractors furnishing goods or services to the extent furnished to or in connection with the operation of the Facilities. Notwithstanding the foregoing, Sellers may retain copies of any Contracts, documents or records (x) which relate to properties retained by Sellers or activities conducted by Sellers after the Closing Date or (y) which are required to be retained pursuant to any legal requirement or are subject to the attorney-client privilege, for financial reporting purposes, for Tax purposes, or otherwise in connection with the Excluded Liabilities.
(b) Notwithstanding anything to the contrary herein, specifically excluded from the Assets are the following assets (the “Dagger Excluded Assets”):
(i) all cash (including the Purchase Price), in each case free cash equivalents, securities, certificates of deposit, Treasury bills and clear marketable securities held by Sellers or any of their Affiliates, including all Security Interestscash and cash equivalents of Seller and its Affiliates used as collateral for certain credit arrangements and deposits with utilities, except Permitted Encumbrances:
2.1.1 all contracts insurance companies and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, Persons and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, depositsutility, advancessecurity and/or other deposits paid primarily in connection with the operation of the Hannibal Facility (in each case other than any prepaid expenses and deposits transferred to Buyer pursuant to Section 1.1(a)(vii));
(ii) all intercompany notes, drafts and accounts receivable or other prepayments and related rights paid or obtained by Arrow relating to obligations for the Business, payment of money (other than those, if any, which constitute Excluded Assets under the Accounts Receivable transferred to Buyer pursuant to Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”1.1(a)(viii));
2.1.7 (iii) all bank and other depository accounts and safe deposit boxes of Arrow’s training materialsSellers;
(iv) all prepaid income Taxes, speaking materials deferred income Tax assets and sales refunds of income Taxes and income Tax loss carryforwards relating to any period or promotional materials that relate portion thereof ending on or prior to the BusinessClosing Date;
2.1.8 (v) all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business real property and all other tangible assets as materially listed leases for real property at the Hannibal Facility and the real property and leases for real property set forth on Schedule 2.1.8 (the “Dagger Tangible Assets”1.1(b)(v);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assetsvi) nontransferable Permits, including all records those set forth on Schedule 1.1(b)(vi) and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business Hannibal Facility;
(vii) all Benefit Plans and Benefit Plan assets;
(viii) all insurance policies of Sellers, any refunds paid or payable in connection with the Dagger Facilitiescancellation or discontinuance of any insurance policies, including and any claims made on/or under any such insurance policies;
(ix) all Actions, demands, rights and privileges that relate to Facilities on or prior to the permits listed Closing Date;
(A) all Contracts of Sellers other than the Assigned Contracts and (B) all Contracts set forth on Schedule 2.1.12, 1.1(b)(x) (the Contracts referred to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible in (A) and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (B) collectively, the “Dagger Subsidiary SharesExcluded Contracts”);
(xi) all of Sellers’ rights, claims, credits, causes of action or rights of set-off related to this Agreement and the Seller Transaction Agreements;
(xii) all of Sellers’ rights, claims, credits, causes of action or rights of set-off related to Excluded Liabilities;
(xiii) all Seller Intellectual Property set forth on Schedule 1.1(a)(iv);
(xiv) the SMS Mill Assets (unless the SMS Mill Assets are included as “Assets” pursuant to Section 1.7); and
(xv) other assets of Sellers or their Affiliates which are not used, held for use or intended to be used by Sellers at the Facilities or are not specifically identified as “Assets” in Section 1.1(a).
Appears in 1 contract
Samples: Asset Purchase Agreement (Aleris International, Inc.)
Purchase and Sale of Assets. (a) Upon the terms and subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Seller shall, and shall cause the Divesting Entities to, sell, convey, assign and transfer and assign to Acquisition SubProducts Purchaser, and Acquisition Sub Products Purchaser shall purchase purchase, acquire and acquire accept from ArrowSeller and the Divesting Entities, all right, title and interest in and to the assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security InterestsLiens (other than Permitted Liens), except Permitted Encumbrances:all of Seller's and the Divesting Entities' rights, titles and interests in the Territory in, to or under the assets set forth below (collectively, the "Non-Inventory Purchased Assets" or, collectively with the Inventories, the "Purchased Assets"):
2.1.1 all (i) the listed contracts and other arrangements agreements and commitments that are set forth on Schedule 2.1(a)(i) and all purchase orders for finished goods Products that are outstanding as of the Closing (the "Assumed Contracts");
(ii) the Transferred Intellectual Property, including all trademark rights relating to "Ortho Dermatologics" (but excluding any trademark rights relating to the Business pursuant to combination of the word "Ortho" with any other name, which Arrow is providing goods and/or servicesshall be Excluded Trademarks), and all proposals, bids rights with respect to all formulations and offers for future such contracts and arrangementsreformulations of the Products, including non-prescription (over-the-counter) formulations of the contracts Products and other arrangements, proposals, bids the re-formulated Products;
(iii) the Product Registrations and offers listed on Schedule 2.1.1 the Registration Information (including pending applications and applications that are in the “Dagger Engagements”process of being prepared by Seller or any of its Affiliates for Product Registrations);
2.1.2 all contracts and other arrangements (iv) Governmental Authorizations relating solely to the Purchased Assets, each of which are set forth on Schedule 2.1(a)(iv), to the extent such Governmental Authorizations are identified on such Schedule as being transferable pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”)applicable Law;
2.1.3 (v) all other contracts relating to the Business financial, accounting and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents operating data and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating solely to the Business or the Dagger FacilitiesPurchased Assets (the "Records"), including correspondence with the permits listed on Schedule 2.1.12FDA, customer and vendor lists to the extent relating solely to the Business or the Purchased Assets, all files and documents (including credit information) to the extent relating to customers and vendors solely of the Products, all pre-clinical and clinical data in respect of the Products, the Transferred Employee Records, to the extent permitted by applicable Law and all other business and financial records, files, books and documents (whether in hard copy or computer format) to the same extent relating solely to the Business or the Purchased Assets; provided, however, that Seller may be transferredretain a copy of (A) all such business and financial records, (B) any other books and records to the extent necessary for reporting, regulatory, tax, accounting or litigation purposes and (C) any correspondence to, with or from any Person in connection with the Business, in each case to the extent related to the Excluded Assets or as otherwise required by Law or Seller's or the Divesting Entities' internal policies for record-keeping purposes;
(vi) all advertising, marketing, market research, sales and promotional materials, if any, relating solely to the Business or the Purchased Assets (including the Products) that are in Seller's or any Divesting Entities' physical possession or under its or their control (collectively, "Promotional Materials");
(vii) all claims (including, subject to Section 7.5, counterclaims), defenses, causes of action, rights under express or implied warranties, rights of recovery, rights of set-off, rights of subrogation and all other rights of any kind against any third party, solely related to the Business other than (A) arising under Seller's or its Affiliates' insurance policies, (B) relating to any Retained Liabilities or Excluded Assets or (C) relating the purchase or procurement of any good, service or product for, or on behalf of, the Business at any time up until the Closing, along with any and all recoveries in connection thereto (to the extent not related to the assets described in clauses (ii)-(vi) or (viii)-(x) of this Section 2.1(a) or the Assumed Liabilities);
(viii) all goodwill and going concern value associated with the Purchased Assets or the Business;
(ix) an electronic copy of all of the materials in the electronic dataroom relating solely to the Business on compact disc media; and
2.1.13 (x) all other assets of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all Seller or its Affiliates that are used or held for use solely in connection with the operation or conduct of Arrow’s capital stock and other voting the Business (except for interests in the Dagger Subsidiaries Inventories, land, real estate or the items described in clauses (collectivelyi)-(xiv) of Section 2.3).
(b) Upon the terms and subject to the conditions set forth herein, at the Closing, Seller shall, and shall cause the Divesting Entities to, sell, convey, assign and transfer to Inventory Purchaser, and Inventory Purchaser shall purchase, acquire and accept from Seller and the Divesting Entities, free and clear of all Liens (other than Permitted Liens), all of Seller's and the Divesting Entities' rights, titles and interests in the Territory in, to or under the Inventories, other than the Damaged Inventory. Schedule 2.1(b) sets out a breakdown by unit types, and the agreed price per unit of, the “Dagger Subsidiary Shares”Inventories held by Seller and the Divesting Entities. On or within two (2) days prior to the Closing Date, Seller shall conduct an audited physical stock-take of the Inventories, at which time it shall determine that portion of the Inventories that constitute the Damaged Inventories (subject to Purchasers' rights set out in Section 2.7). One or more representatives of Inventory Purchaser shall attend such stock-take and shall notify Seller immediately if they identify any physically and materially damaged Inventory; provided, that nothing in this Section 2.1(b) shall prejudice Purchasers' rights under Section 2.7. Seller shall provide Inventory Purchaser with reasonable prior written notice of the date, time and location of such stock-take.
Appears in 1 contract
Samples: Asset Purchase Agreement (Valeant Pharmaceuticals International, Inc.)
Purchase and Sale of Assets. Upon On the terms and subject to the terms and conditions hereofset forth in this Agreement, at the Closing, Arrow the Seller shall sell, transfer assign, transfer, convey and assign deliver to Acquisition Subthe Purchaser, and Acquisition Sub the Purchaser shall purchase and acquire accept from Arrowthe Seller, all of the Seller's right, title and interest in and to all the assets, properties, rights, contractual rights and claims of the Seller relating to the Business (except for the Excluded Assets set forth in Section 2.2), wherever located, whether tangible or intangible, real, personal or mixed, as the same shall exist at the Closing (such right, title and interest in and to all such assets, properties, rights, contractual rights and claims being collectively referred to herein as the "ASSETS"), free and clear of all mortgages, pledges, liens, charges, equities, encumbrances, rights of first refusal, defects in title, security interests, hypothecations, assessments, easements, encroachments, consents, claims, options, reservations, restrictions, condemnation proceedings, burdens and conflicts of all kinds (collectively, "ENCUMBRANCES"), other than (i) minor easements, encroachments and similar reservations, restrictions and burdens or other Encumbrances that would not individually or in the aggregate adversely affect the use or enjoyment of the Assets by the Purchaser and (ii) Encumbrances that the Purchaser agrees in writing to accept ("PERMITTED ENCUMBRANCES"). Without limiting the generality of the foregoing, the Assets shall include all the Seller's right, title and interest in and to the assets utilized assets, properties, rights, contractual rights and claims described in connection clauses (a) through (s) below (but shall specifically exclude the Excluded Assets):
(a) all machinery and equipment, including all manufacturing, production, maintenance, packaging, testing and other machinery, tooling and equipment, molds, presses, furnishings, furniture, fixtures, office supplies, vehicles, equipment, computers and other items of tangible personal property;
(b) all accounts receivable and related deposits, security or collateral therefor, including recoverable customer deposits (collectively, the "TRADE RECEIVABLES");
(c) all inventories of raw materials, rolls and guides, work in progress, finished products, goods, spare parts, supplies, replacement and component parts, packaging, shipping containers and other materials (collectively, the "INVENTORIES"), including Inventories held at any location controlled by the Seller, Inventories previously purchased or in transit to the Seller, Inventories consigned to vendors, resellers or customers, and Inventories in transit to such vendors, resellers or customers;
(d) all Intellectual Property, the rights to sue xxx, and remedies against, past, present, and future infringements thereof, and the rights of priority and protection of interests therein under applicable laws and all documentation that embodies or relates to the Intellectual Property;
(e) all copies of marketing brochures and materials and other printed or written materials in any form or medium relating to the Seller's ownership or operation of the Business that the Seller is not required by law to retain and duplicates of any such materials that the Seller is required by law to retain;
(f) all rights under all representations, warranties and guarantees made by suppliers, manufacturers, contractors and others with respect to the performance Assets or the Business;
(g) all Permits held by the Seller (or, to the extent any such Permits are not freely transferable, all right, title and technical interest of the Seller in such Permits to the fullest extent such right, title and administrative support interest may be transferred);
(h) all contracts, agreements, understandings and arrangements listed on SCHEDULE 2.1(h) (the "ASSUMED CONTRACTS"), but specifically excluding the Excluded Contracts and Excluded Liabilities;
(i) all books and records of the Business, including the following assets (the “Dagger Assets”)data processing records, in each case free employment and clear of all Security Interestspersonnel records, except Permitted Encumbrances:
2.1.1 all contracts customer lists, files and records, advertising and marketing data and records, credit records, records relating to suppliers and customers and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, data and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”)databases, but excluding the Dagger Leases, regardless corporate and tax records of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 (j) all of Arrow’s tangible assets primarily credits, prepaid expenses, deferred charges, advance payments, security deposits (including utility deposits) and prepaid items (and, in each case, security interests from third parties relating thereto);
(k) all goodwill relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 (l) all Permits relating written leases and subleases, including all written amendments and modifications, pursuant to which the Seller leases any real property, including all leases and subleases and amendments and modifications described in SCHEDULE 2.1(l) (the "ASSUMED LEASES"), but specifically excluding the Excluded Leases;
(m) except as set forth on SCHEDULE 2.1(m), all rights to causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Seller with respect to the Business or the Dagger Facilitiesownership, use, function or value of any Asset, whether arising by way of counterclaim or otherwise (except arising pursuant to the Contemplated Transactions), including lawsuits, judgments, claims and demands that may be brought against the permits listed on Schedule 2.1.12Purchaser or any of its members or any of their respective Affiliates, but excluding (i) any actions arising out of the Chapter 11 Case (other than actions that in the reasonable judgment of the Purchaser are necessary for the Purchaser to realize the full value of the Assets), (ii) any actions related to the extent Excluded Assets, and (iii) any avoidance actions or similar actions, including but not limited to actions under sections 544, 545, 547, 548, 550 and 553 of the same may be transferredBankruptcy Code;
(n) all proceeds, reserves, benefits or claims related to any insurance coverage, including all such proceeds, reserves, benefits or claims of the Seller arising out of the insurance policies and binders set forth on SCHEDULE 4.18, with respect to claims arising out of or in connection with the Assets or the Business after the Closing Date or the Assumed Liabilities;
(o) all telephone and facsimile numbers and all listings in all telephone books and directories used by the Seller in the conduct of the Business;
(p) all cash and cash equivalents of the Seller;
(q) all prepaid Taxes of the Seller for the Pre-Closing Tax Period;
(r) all assets of any Assumed Seller Plan and any trust related thereto; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests (s) those items described in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”SCHEDULE 2.1(s).
Appears in 1 contract
Purchase and Sale of Assets. (a) Upon the terms and subject to the terms and conditions hereofof this Agreement, at the Closing, Arrow Parent shall and will cause its applicable Affiliates to sell, convey, transfer and assign to Acquisition SubUTSC, free and clear of all Encumbrances other than Permitted Liens, and Acquisition Sub UTSC shall purchase purchase, receive and acquire from Arrowaccept, all of Parent’s and its Affiliates’ right, title and interest interest, including all property rights, goodwill, and claims in the following assets, through (x) the purchase by Buyer of the equity of Company pursuant to Section 1.1 of this Agreement, and (y) the transfer pursuant to the terms of this Agreement by Parent or an Affiliate of Parent to the Company or a Subsidiary of the Company, in each of the following cases, as in existence and effect as of the end of the Closing Date:
(i) Business Intellectual Property Assets;
(ii) the Contracts to be listed on Schedule 1.2(a)(ii), consisting of customer Contracts relating to the IPTV Business in the PRC and the PHS Business and all rights to payments relating thereto;
(iii) the Contracts to be listed on Schedule 1.2(a)(iii), consisting of customer Contracts for the IPTV Business in countries other than the PRC and all rights to payments relating thereto;
(iv) the equipment, computers, servers, automobiles and other tangible assets utilized to be listed on Schedule 1.2(a)(iv);
(v) all other IPTV Contracts;
(vi) all Products;
(vii) all Company Software;
(viii) all Inventories;
(ix) all materials, papers and records (in connection with paper or electronic format) in Company’s care, custody, or control employed by and used exclusively in, or relating exclusively to, the performance Business (including and technical not limited to the purchasing, sales and administrative support return materials, authorization records, testing records for all Products, customer and vendor lists, accounting and financial records, product documentation, product specifications, marketing equipment documents, end user documentation, packaging materials, brochures, user manuals, graphics, artwork and software release orders (collectively “Books and Records”));
(x) all other assets directly or indirectly owned by Parent, exclusively used or intended to be used in the operation of the Business (other than the Excluded Assets);
(xi) all other goodwill of the Business;
(xii) all backlog, deferred revenue and deferred cost (as such terms are defined under GAAP) as of the end of the Closing Date related to the Purchased Assets; and
(xiii) the insurance policies and benefit plans to be listed on Schedule 1.2(a)(xiii) hereto (the “Employee Plans”). All of the assets referred to in this Section 1.2(a)(i) through (a)(xiii), inclusive, are collectively referred to herein as the “Purchased Assets.”
(b) Without limiting the generality of this Section 1.2, the Purchased Assets shall not include the assets listed on Schedule 1.2(b) attached hereto, including the following assets (such excluded assets constituting, collectively, the “Dagger Excluded Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:):
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2i) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to not used exclusively in the Business;
2.1.8 all (ii) any licenses to or other rights for Parent and any of Arrow’s tangible assets primarily relating its Affiliates to the Business (use Intellectual Property Rights, Third Party Products or Technology owned by parties other than those tangible assetsParent or any of its Affiliates and not used exclusively in the Business; and
(iii) the equipment, if anycomputers, which constitute Excluded Assets under Section 2.2)technology, including all furniture, fixtures, machinery, office automobiles and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed to be set forth on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all 1.2(b)(iii) which shall be transferred to Parent or an Affiliate of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate Parent, as determined by Parent, on or prior to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger AssetsClosing.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Share and Asset Purchase Agreement (Utstarcom Holdings Corp.)
Purchase and Sale of Assets. Upon and subject Subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Seller shall sell, transfer assign, transfer, convey and assign deliver to Acquisition SubBuyer, and Acquisition Sub Buyer shall purchase from Seller, free and acquire from Arrowclear of all Encumbrances other than Permitted Encumbrances, all of Seller’s right, title and interest in, to and under all of the assets, properties, business and rights of Seller, of every kind and description, owned, held or used primarily in the conduct of the Business as such assets, properties, business and rights exist as of the Closing Date, except for the Excluded Assets (collectively, and together with the Purchased Subsidiary Equity, the “Purchased Assets”), including all of Seller’s right, title and interest in, to and under the following:
(a) all accounts and notes receivable of the Business and other receivables of the Business (whether or not current and including any amounts received by the Seller in connection therewith after the Closing);
(b) all Contracts primarily related to the assets utilized Business (including all rights in connection respect of non-performance or breach thereof), including those set forth on Schedule 2.2(b) (collectively, the “Assigned Contracts”);
(c) all Intellectual Property Assets, together with the performance all corresponding Ancillary IP Rights;
(d) all furniture, fixtures, equipment, computers, supplies and technical and administrative support other tangible personal property of the Business, including including, without limitation, the following assets tangible personal property listed on Schedule 2.2(d) attached hereto (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger EngagementsTangible Personal Property”);
2.1.2 (e) all contracts Permits exclusively related to the Business to the extent such Permits may be transferred under applicable Law, and those non-transferable Permits for which consent to transfer is obtained on or prior to the Closing;
(f) all prepaid assets, expenses, credits, advance payments, security, deposits, charges, sums and fees to the extent related to any Purchased Assets;
(g) all of Seller’s rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets, and all claims, causes of action, judgments, reimbursements, and demands related to the Purchased Assets;
(h) all of Seller’s rights, including but not limited to under warranties, indemnities and other arrangements pursuant rights against third parties, under the Occupeye Share Purchase Agreement;
(i) originals, or where not available, copies, of all books, records, ledgers, tangible data, disks, tapes, other media-storing data and files or other similar information, whether in hardcopy or computer format and whether stored in network facilities or otherwise, including books of account, ledgers and general, financial and accounting records for fiscal years commencing after January 1, 2017, month-end accounts receivable balances related to which Arrow formerly provided goods and/or services relating the Business for each of the twelve (12) months prior to the date hereof, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, correspondence with any Governmental Authority, sales material and records, catalogs, sales promotion literature, advertising materials, brochures, strategic plans, internal financial statements and marketing and promotional surveys, material and research, to the extent primarily related to the Business or the Purchased Assets and also including copies of any other portions of such business records that have information related to the Business, excluding the contracts corporate seals, organizational documents, minute books, stock books, Tax Returns, books of account or other records having to do with the corporate organization of Purchased Subsidiaries (all such items set forth in this Section 2.2(i), “Books and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed EngagementsRecords”);
2.1.3 all ; provided, further, that (A) Seller shall retain a copy of any Books and Records that Seller in good faith determines that Seller or any of its Affiliates is reasonably likely to need to comply with legal, tax, accounting, treasury, federal securities disclosure or similar requirements or in connection with Excluded Liabilities, or for responding to queries or claims from Governmental Authorities or the management of its rights or obligations under this Agreement or any other contracts relating Transaction Document; and (B) it is acknowledged, agreed and understood by Buyer that, unless otherwise already transferred through the transfer of the Purchased Assets or located at the Leased Real Property, Books and Records will only be transferred by Seller to the Business extent that such Books and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that Records exist as of the ClosingClosing and can be located through reasonable efforts on the part of Seller (or, if such records cannot be located through reasonable efforts on the part of Seller, then at the reasonable request of Buyer, with reimbursement from Buyer for the reasonable out-of-pocket expense of Seller), provided, further, that the transfer of any Books and Records shall be made subject to applicable Law;
2.1.6 (j) all of the rights in deposits, rebates, or relating to intellectual property described in the Ancillary Agreement relating to intellectual propertyallowances from customers, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materialssuppliers, speaking materials and sales or promotional materials that other business relations relate to the Business;
2.1.8 (k) all business plans, road maps, letters of Arrow’s tangible assets primarily relating intent and similar documents with respect to future plans of the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”)Business;
2.1.9 (l) the Leased Real Property;
(m) all of Arrow’s accounts receivable rights to refunds and unbilled accounts receivable applicable claims and work-in-process proceeds that relate to the Business (or Purchased Assets against any occurrence-based insurance policies of the “Dagger Receivables” and Seller for any events or occurrences prior to the “Dagger Work-In-Process,” respectively)Closing;
2.1.10 (n) all books, papers, ledgers, documents rights in lock-boxes (if any) and records relating to other depository bank accounts of the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to Seller used solely in connection with the Business or the Dagger Facilities, including the permits and listed on Schedule 2.1.12, to the extent the same may be transferred2.2(n); and
2.1.13 (o) all goodwill associated with any of Arrow’s other tangible and intangible assets related to the Purchased Assets or the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Asset and Equity Purchase Agreement (Asure Software Inc)
Purchase and Sale of Assets. Upon the terms and subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Seller shall, and with respect to Section 2.1(b) shall cause Akrimax to, and with respect to Section 2.1(d) shall cause Mist to, sell, convey, assign and transfer and assign to Acquisition SubPurchaser, and Acquisition Sub Purchaser shall purchase purchase, acquire and acquire accept from ArrowSeller, Mist and Akrimax, as applicable, free and clear of all Liens, other than Permitted Encumbrances, all right, title and interest in of Seller, Akrimax and Mist, as applicable, in, to the and under those assets utilized in connection with the performance and technical and administrative support of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A following clauses (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business a) through (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies i) related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of ArrowSeller’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries Product (collectively, the “Dagger Subsidiary SharesPurchased Assets”):
(a) all the Contracts relating to the Product set forth on Schedule 2.1(a), including with respect to the Licensed Intellectual Property (the “Assumed Contracts”).;
(b) all of the Owned Intellectual Property (including the URL registration owned by Akrimax as set forth on Schedule 4.9(a)(ii));
(c) all customer lists for the Product and research data to the extent related to the Product and in the possession or control of Seller or any Affiliate thereof;
(d) the Purchased Inventory;
(e) all the Purchased Documents; provided, however, that Seller shall have the right to retain one copy (subject to the confidentiality provisions set forth in Section 6.11) of all or any portion of the Purchased Documents to comply with applicable Laws and regulatory guidance;
(f) all refunds for Taxes relating to the Purchased Assets with respect to a Post-Closing Tax Period;
(g) all of Seller’s rights under warranties, guaranties, indemnities and similar rights against third parties, including any predecessors in title, to the extent related to the Assumed Liabilities or the Exploitation of the Purchased Assets and the Product on or after the Closing Date, including rights to proceeds under insurance policies in respect of damage or loss to the Purchased Assets which have not been fully remediated as of the Closing (“Covered Proceeds”); and
(h) all of Seller’s claims, counterclaims, causes of action and all other rights of any kind against any third party in connection with the Assumed Liabilities or related to the Exploitation of the Purchased Assets on or after the Closing Date.
Appears in 1 contract
Purchase and Sale of Assets. Upon On the terms and subject to the terms and conditions hereofset forth in this Agreement, at the Closing, Arrow shall Purchaser will purchase, acquire and accept from Sellers and Sellers will sell, transfer assign transfer, convey and assign deliver to Acquisition Sub, and Acquisition Sub shall purchase and acquire from ArrowPurchaser, all of Sellers’ right, title and interest in, to and under all assets, properties, rights and interests of every kind and description, tangible or intangible, of the Sellers used or held for use in and to the assets utilized in connection with the performance and technical and administrative support conduct of the Business, including the following assets (the “Dagger Assets”), in each case free and clear of all Security InterestsLiens (other than Permitted Liens) (collectively, except Permitted Encumbrancesthe “Purchased Assets”), including, but not limited to, the following:
2.1.1 (a) All Assumed Contracts;
(b) All raw materials, work in process and inventory;
(c) All fixed assets, leasehold improvements, vehicles and equipment;
(d) All other tangible personal property and interests therein owned by Sellers, including all contracts furniture, furnishings, tools, product catalogs, advertising materials, stationery, purchase order forms, sale order forms and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or servicesinvoices;
(e) All prepaid expenses, prepaid rents, prepaid insurance, utility deposits and all proposals, bids and offers for future such contracts and arrangementsdeposits on contractual obligations, including the contracts and other arrangements, proposals, bids and offers listed items set forth on Schedule 2.1.1 (Section 2.1(e) of the “Dagger Engagements”)Seller Disclosure Schedule;
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses f) Assignable Permits used or other agreements held for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all (g) All files, books and records of Arrow’s tangible assets primarily Sellers relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2but excluding Sellers’ Retained Records), including all furnitureas the same exist on the Closing Date (collectively, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible AssetsSellers’ Records”);
2.1.9 all of Arrow’s accounts receivable (h) All rights in, to and unbilled accounts receivable and work-in-process under any Real Estate Leases that relate Sellers are a party to which are in effect on the Closing Date, including any Real Estate Leases which Purchaser designates for assumption pursuant to its Designation Rights (collectively, the “Assumed Real Estate Leases”); provided, however, that any such Real Estate Leases that Purchaser adds to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively)Excluded Contracts schedule or designates for rejection pursuant to Section 2.6 shall be an Excluded Asset;
2.1.10 all books(i) All rights under non-disclosure, papersconfidentiality or similar agreements entered into with third parties in connection with the sale of the Business or any part of the Business;
(j) All rights, ledgersclaims, documents causes of action and records credits owned by Sellers to the extent relating to any Purchased Asset or Assumed Liability;
(k) All warranties, guarantees and similar rights related to the Dagger Purchased Assets, including all records warranties and documents relating to guarantees made by suppliers, manufacturers and contractors under the Dagger EngagementsPurchased Assets, and claims against suppliers and other third parties in connection with the Dagger Assumed Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations ;
(provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies l) All accounts receivable related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred(m) All cash and cash equivalents; and
2.1.13 all of Arrow’s other tangible and (n) All intangible assets related to the Business.
2.1.14 all and goodwill of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectivelySellers, including, without limitation, the “Dagger Subsidiary Shares”)Purchased Intellectual Property and rights and relationships with vendors and suppliers of Sellers.
Appears in 1 contract
Purchase and Sale of Assets. (a) Upon the terms and subject to the terms and conditions hereofset forth herein, at the Closing, Arrow Seller shall, and shall cause any of its Affiliates who own or Control Purchased Assets to, sell, convey, assign and transfer and assign to Acquisition SubPurchaser, and Acquisition Sub Purchaser shall purchase purchase, acquire and acquire accept from ArrowSeller and its Affiliates, all of Seller and its Affiliates’ right, title and interest in in, to and to the assets utilized in connection with the performance and technical and administrative support of the Business, including under the following assets (collectively, the “Dagger Purchased Assets”), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 (i) all contracts and Contracts set forth on Schedule 2.1(a)(i) or, whether or not set forth on Schedule 2.1(a)(i), any other arrangements relating to the Business pursuant Contracts to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow Seller or any of its Affiliates is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (party used exclusively or held exclusively for use by Seller or an Affiliate in connection with the “Dagger Contracts”), but excluding the Dagger Leases, regardless Exploitation of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries Royalty Product (collectively, the “Dagger Subsidiary SharesAssumed Contracts”); provided that any lease of real property, any Contracts in the nature of employee benefit plans, any Contracts evidencing indebtedness and any Contracts for general administrative services and office supplies, in each case, that are not set forth in Schedule 2.1(a)(i), shall not be included in the Assumed Contracts;
(ii) the Seller IP;
(iii) the Purchased Inventory;
(iv) the Product Registrations and Regulatory Materials set forth on Schedule 2.1(a)(iv) or, whether or not set forth on Schedule 2.1(a)(iv), all Product Registrations and Regulatory Materials used or held for use by Seller or an Affiliate exclusively in connection with the Exploitation of any Royalty Product; and
(v) all books and records to the extent exclusively relating to the other Purchased Assets or any Royalty Product (the “Records”), including correspondence with the FDA or other Regulatory Authorities, product drawings, work instructions and bills of materials, customer lists and vendor lists; provided, that Seller shall be entitled to redact from such Records any information to the extent that it is not conveyed to Purchaser hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Karyopharm Therapeutics Inc.)
Purchase and Sale of Assets. (a) Upon and subject to the terms and conditions hereofClosing Date, at the Closing, Arrow Seller shall sell, convey, assign, transfer and assign deliver to Acquisition SubPurchaser, and Acquisition Sub Purchaser shall purchase and acquire accept from ArrowSeller, all of Seller's right, title and interest in and to the assets utilized following (collectively, the "Assets"):
(i) the Real Property;
(ii) the Personalty;
(iii) the Loans; and
(iv) the Branch Leases, Tenant Leases and Safe Deposit Agreements.
(b) Notwithstanding anything to the contrary contained in connection any Section hereof, other than Section 12.1(d)(ii), if Seller shall be unable to deliver Marketable Title to Real Property on which a Branch is located on the Closing Date and Purchaser elects not to acquire such Real Property with such exceptions as render title thereto not to be Marketable Title, Seller and Purchaser shall lease such Real Property pursuant to a Lease Agreement for the performance and technical and administrative support current market rental as agreed to by the parties hereto or, if no such agreement is reached within thirty (30) days of the BusinessClosing Date, including the following assets as determined pursuant to an appraisal for such Branch obtained pursuant to Section 14.6; provided that such Lease Agreement shall provide as follows:
(i) Seller may sell such Real Property to any person, subject to such Lease Agreement, for any price, subject to a right of first refusal as set forth in subsection 2.1(d) hereto (the “Dagger Assets”), in each case free and clear "Right of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”First Refusal");
2.1.2 all contracts (ii) Such Lease Agreement shall be for a term of one (1) year, which shall automatically renew for a term of one (1) year at the end of the term and other arrangements each renewal term on the same terms and conditions, except as to rental, which shall be changed to the then current market rental, as agreed to by the parties hereto or, if no such agreement as to such market rental shall have been reached within thirty (30) days of the commencement of the applicable renewal term, as determined pursuant to which Arrow formerly an appraisal for such Branch obtained pursuant to Section 14.6; provided goods and/or services relating that such Lease Agreement shall be terminable by Seller, or its successors and assigns thereto, or Purchaser upon such number of days written notice as shall equal the greater of (A) the minimum 6 number of days permitted to close such Branch under applicable law, or (B) one hundred twenty (120) days; and
(iii) In the event it is able to deliver Marketable Title, Seller may by written notice given on or prior to the Businessfirst anniversary of the Closing Date require Purchaser to purchase such Real Property, excluding whether or not such Lease Agreement has been terminated, for the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating applicable Real Property Purchase Price, or, thereafter, so long as such Lease Agreement has not been terminated prior to the Business and giving of such notice, for the fair market value as agreed to by the parties hereto or, if no such agreement is reached within thirty (30) days of such notice, as determined by appraisal in the manner described in Section 14.6.
(c) On or prior to the Closing Date Seller may:
(i) in its reasonable discretion by written notice to Purchaser provide for (A) the substitution of a new residential mortgage loan for a Residential Mortgage Loan (x) which has been paid in full prior to the Closing Date or (y) with respect to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements the representations and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses warranties made by Seller in Section 8.7 or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.21.1(f) that exist shall be untrue as of the Closing;Closing Date (in either case, an "Identified Mortgage Loan"), provided, however, that such substituted residential mortgage loan shall be similar to such Identified Mortgage Loan in principal amount, interest rate and other terms, or (B) the removal of such Identified Mortgage Loan from the Loans. Such Identified Mortgage Loan shall no longer be deemed a Residential Mortgage Loan for the purposes hereof from and after the date of any such substitution or removal and any such new loan shall be deemed a Residential Mortgage Loan from and after the date of any such substitution; or
2.1.6 all (ii) with respect to any Loan other than a Residential Mortgage Loan with respect to which the representations and warranties made by Seller in Section 8.7 or Schedule 1.1(f) shall be untrue as of the rights in or relating to intellectual property described in Closing Date (such other Loan being herein called an "Identified Loan") provide for (A) with the Ancillary Agreement relating to intellectual propertywritten consent of Purchaser, the form substitution for such Identified Loan of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materialsa new loan similar to such Identified Loan in principal amount, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office interest rate and other equipment terms, or (B) in its reasonable discretion by written notice to Purchaser, the removal of such Identified Loan from the Loans. Such Identified Loan shall no longer be deemed a Loan for the purposes hereof from and leasehold improvements relating after the date of any such substitution or removal and any such new loan shall be deemed a Loan from and after the date of any such substitution.
(i) In the event that Seller desires to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all sell Real Property pursuant to Subsection 2.1(b) hereto, it shall provide Purchaser with written notice of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate such intent to the Business (the “Dagger Receivables” sell and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies terms of such booksproposed sale ("Notice of Proposed Transfer"). During the fifteen (15) day consecutive period commencing on the date of Purchaser's receipt of the Notice of Proposed Transfer, papersPurchaser shall have the first option to purchase the Real Property, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent before the same may be transferred; andsold to any other person. Purchaser must give written notice of its election to purchase during such fifteen (15) day period.
2.1.13 all of Arrow’s other tangible and intangible assets related (ii) The purchase price to be paid by Purchaser for the Real Property shall be equal to the Businesspurchase price proposed to be paid by a third party purchaser.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Eagle Financial Corp)
Purchase and Sale of Assets. (a) Upon and subject to the terms and conditions hereofClosing Date, at the Closing, Arrow Seller shall sell, convey, assign, transfer and assign deliver to Acquisition SubPurchaser, and Acquisition Sub Purchaser shall purchase and acquire accept from ArrowSeller, all of Seller's right, title and interest in and to the assets utilized following (collectively, the "Assets"):
(i) the Real Property;
(ii) the Personalty;
(iii) the Loans; and
(iv) the Branch Leases, Tenant Leases and Safe Deposit Agreements.
(b) Notwithstanding anything to the contrary contained in connection any Section hereof, other than Section 12.1(d)(ii), if Seller shall be unable to deliver Marketable Title to Real Property on which a Branch is located on the Closing Date and Purchaser elects not to acquire such Real Property with such exceptions as render title thereto not to be Marketable Title, Seller and Purchaser shall lease such Real Property pursuant to a Lease Agreement for the performance and technical and administrative support current market rental as agreed to by the parties hereto or, if no such agreement is reached within thirty (30) days of the BusinessClosing Date, including the following assets as determined pursuant to an appraisal for such Branch obtained pursuant to Section 14.6; provided that such Lease Agreement shall provide as follows:
(i) Seller may sell such Real Property to any person, subject to such Lease Agreement, for any price, subject to a right of first refusal as set forth in subsection 2.1(d) hereto (the “Dagger Assets”), in each case free and clear "Right of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”First Refusal");
2.1.2 all contracts (ii) Such Lease Agreement shall be for a term of one (1) year, which shall automatically renew for a term of one (1) year at the end of the term and other arrangements each renewal term on the same terms and conditions, except as to rental, which shall be changed to the then current market rental, as agreed to by the parties hereto or, if no such agreement as to such market rental shall have been reached within thirty (30) days of the commencement of the applicable renewal term, as determined pursuant to which Arrow formerly an appraisal for such Branch obtained pursuant to Section 14.6; provided goods and/or services relating that such Lease Agreement shall be terminable by Seller, or its successors and assigns thereto, or Purchaser upon such number of days written notice as shall equal the greater of (A) the minimum number of days permitted to close such Branch under applicable law, or (B) one hundred twenty (120) days; and
(iii) In the event it is able to deliver Marketable Title, Seller may by written notice given on or prior to the Businessfirst anniversary of the Closing Date require Purchaser to purchase such Real Property, excluding whether or not such Lease Agreement has been terminated, for the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating applicable Real Property Purchase Price, or, thereafter, so long as such Lease Agreement has not been terminated prior to the Business and giving of such notice, for the fair market value as agreed to by the parties hereto or, if no such agreement is reached within thirty (30) days of such notice, as determined by appraisal in the manner described in Section 14.6.
(c) On or prior to the Closing Date Seller may:
(i) in its reasonable discretion by written notice to Purchaser provide for (A) the substitution of a new residential mortgage loan for a Residential Mortgage Loan (x) which has been paid in full prior to the Closing Date or (y) with respect to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements the representations and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses warranties made by Seller in Section 8.7 or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.21.1(f) that exist shall be untrue as of the Closing;Closing Date (in either case, an "Identified Mortgage Loan"), provided, however, that such substituted residential mortgage loan shall be similar to such Identified Mortgage Loan in principal amount, interest rate and other terms, or (B) the removal of such Identified Mortgage Loan from the Loans. Such Identified Mortgage Loan shall no longer be deemed a Residential Mortgage Loan for the purposes hereof from and after the date of any such substitution or removal and any such new loan shall be deemed a Residential Mortgage Loan from and after the date of any such substitution; or
2.1.6 all (ii) with respect to any Loan other than a Residential Mortgage Loan with respect to which the representations and warranties made by Seller in Section 8.7 or Schedule 1.1(f) shall be untrue as of the rights in or relating to intellectual property described in Closing Date (such other Loan being herein called an "Identified Loan") provide for (A) with the Ancillary Agreement relating to intellectual propertywritten consent of Purchaser, the form substitution for such Identified Loan of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materialsa new loan similar to such Identified Loan in principal amount, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office interest rate and other equipment terms , or (B) in its reasonable discretion by written notice to Purchaser, the removal of such Identified Loan from the Loans. Such Identified Loan shall no longer be deemed a Loan for the purposes hereof from and leasehold improvements relating after the date of any such substitution or removal and any such new loan shall be deemed a Loan from and after the date of any such substitution.
(i) In the event that Seller desires to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all sell Real Property pursuant to Subsection 2.1(b) hereto, it shall provide Purchaser with written notice of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate such intent to the Business (the “Dagger Receivables” sell and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies terms of such booksproposed sale ("Notice of Proposed Transfer"). During the fifteen (15) day consecutive period commencing on the date of Purchaser's receipt of the Notice of Proposed Transfer, papersPurchaser shall have the first option to purchase the Real Property, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent before the same may be transferred; andsold to any other person. Purchaser must give written notice of its election to purchase during such fifteen (15) day period.
2.1.13 all of Arrow’s other tangible and intangible assets related (ii) The purchase price to be paid by Purchaser for the Real Property shall be equal to the Businesspurchase price proposed to be paid by a third party purchaser.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Webster Financial Corp)
Purchase and Sale of Assets. Upon and subject On the Closing Date, Seller will sell to the terms and conditions hereof, at the Closing, Arrow shall sell, transfer and assign to Acquisition SubBuyer, and Acquisition Sub shall Buyer will purchase and acquire from ArrowSeller, all rightof Seller's rights, title and interest in and to all of the assets utilized and properties of Seller related to or used or useful in connection with the performance Business other than the Excluded Assets (collectively, the "ASSETS"), free and technical clear of any Liens, including without limitation:
(a) all equipment, computer hardware, software, machinery, fixtures, tools, and administrative support furniture used or useful in connection with, or otherwise related to, the Business (collectively, the "EQUIPMENT"), and all supplies, spare parts and warranties relating to any of the Equipment;
(b) all patents, registered and unregistered trademarks, service marks, logos, designs, corporate and trade names, and registered and common law copyrights, and all applications therefor, used or useful in connection with, or otherwise related to, the Business;
(c) all inventions, discoveries, techniques, processes, methods, formulae, designs, trade secrets, confidential information, know-how and ideas used or useful in connection with or otherwise related to the Business (together with the items listed in subsection (b) above, the "INTELLECTUAL PROPERTY");
(d) all accounts receivable of the Business, including the following assets accounts related to services provided to customers that have not yet been billed and thus may not be reflected yet on Seller's books as a receivable (the “Dagger Assets”"RECEIVABLES"), deposits, investments, securities, advance payments, and all other claims, causes of action, choses in each case free action and clear rights of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts recovery and other arrangements setoff relating to the Business pursuant or any of the Assets that the Seller has against any Person;
(e) to which Arrow is providing goods and/or servicesthe extent transferable, all rights under (i) all contracts, agreements, licenses, commitments and purchase orders with Seller's customers for sales of Seller's services and (ii) all proposalsof Seller's contractual provisions, bids agreements, licenses, or commitments constituting restrictive covenants made by its employees, agents, representatives and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 Principals (the “Dagger Engagements”"BUSINESS AGREEMENTS");
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating (f) to the Businessextent transferable, excluding all rights under all permits, licenses, franchises, certificates, authorizations, consents and approvals obtained from or issued by any governmental entity that are necessary or desirable for the contracts and other arrangements listed on Schedule 2.1.2 ownership or operation of the Business or the ownership, operation or use of any of the Assets (collectively, the “Dagger Completed Engagements”"BUSINESS PERMITS");
2.1.3 (g) all other contracts books, records, customer lists, files, ledgers, drawings, specifications and manuals relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained or any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leasesAssets, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking advertising materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits information relating to the Business or any of the Dagger FacilitiesAssets, including regardless of the permits listed on Schedule 2.1.12, to the extent the same may be transferredform in which such information appears; and
2.1.13 (h) all goodwill of Arrow’s other tangible and intangible assets related to the BusinessBusiness or associated with any of the Assets.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Asset Purchase Agreement (World Health Alternatives Inc)
Purchase and Sale of Assets. Upon the terms and subject to the conditions of this Agreement, at the Closing, and subject to the terms and conditions hereofof the Xxxx of Sale and the Master Participation Agreement and the Xxxxxxx Mac I/O Strip Assignment Agreement which set forth the Purchased Assets being sold to the TRS and the Partnership, at respectively, the Closing, Arrow Seller shall sell, transfer assign, transfer, convey and assign deliver to Acquisition Subthe Buyer, and Acquisition Sub the Buyer, in reliance on the representations, warranties and covenants of the Seller contained herein, shall purchase and acquire from Arrowthe Seller, all of the Seller’s right, title and interest interest, direct or indirect, in and to all assets, properties and rights of every nature, kind and description, whether tangible or intangible, real, personal or mixed, accrued or contingent (including goodwill), wherever located and whether now existing or hereafter acquired prior to the assets utilized Closing Date, used or held for use primarily in connection with the performance and technical and administrative support Included Business as the same shall exist on the Closing Date, whether or not carried or reflected on or specifically referred to in the Seller’s books or financial statements or in the Disclosure Schedules hereto, and, for the avoidance of doubt, other than the BusinessExcluded Assets (collectively, including the following assets (the “Dagger Purchased Assets”), in each case free and clear of all Security Interests, except any Encumbrances other than Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 without limitation all of the leasesSeller’s right, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments title and related rights paid or obtained by Arrow relating interest in and to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as assets set forth in Schedule 2.1 of the Closing;
2.1.6 all Disclosure Schedules. For the avoidance of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual propertydoubt, the form of which is attached as Exhibit A (Excess Servicing Strip and the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materialsXxxxxxx Mac I/O Strip are being sold, speaking materials conveyed, transferred, assigned and sales or promotional materials that relate delivered solely to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating Partnership (and not the TRS) pursuant to this Agreement and the Master Participation Agreement with respect to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office Excess Servicing Strip and other equipment and leasehold improvements relating the Xxxxxxx Mac I/O Strip Assignment Agreement with respect to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger AssetsXxxxxxx Mac I/O Strip.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Purchase and Sale of Assets. Upon On the terms and subject to the terms and conditions hereofcontained in this Agreement, at on the ClosingClosing Date, Arrow shall the Company will sell, transfer convey, transfer, assign and assign deliver to Acquisition Sub(or cause to be sold, conveyed, transferred, assigned and delivered by the relevant Selling Subsidiaries owning, leasing or having the right to use the Purchased Assets to) the Buyer, and Acquisition Sub shall the Buyer will purchase and acquire take assignment and delivery from Arrow, the Sellers of all of the legal and beneficial right, title and interest of the Sellers in and to the assets utilized in connection with the performance and technical and administrative support of the BusinessPurchased Assets, including the following assets (the “Dagger Assets”), in each case free and clear of all Security Interests, except any Lien of any kind whatsoever other than a Permitted Encumbrances:
2.1.1 all contracts Lien and other arrangements relating the Lien identified in Section 3.8(a) of the applicable Business Schedules with respect to the Owned Real Premises located in Rapid City, South Dakota; provided, however, that if the GE Condition is satisfied, then the Owned Real Premises located in Rapid City, South Dakota shall be transferred free and clear of such Lien identified in Section 3.8(a) of the applicable Business pursuant Schedules. The Buyer will acquire such Purchased Assets in exchange for the Buyer's payment of the cash portion of the Purchase Price (as set forth in Section 2.4 hereof) and the assumption of the Assumed Liabilities (as set forth in Section 2.2(a) hereof).
(i) The Purchased Assets will include any additions to which Arrow is providing goods and/or servicessuch assets, properties, Contracts and all proposalsrights in the ordinary course of business between December 19, bids 2002 and offers for future the Closing Date (such contracts and arrangementsperiod of time, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”"Pre-Closing Period"), but specifically excluding (x) the Dagger LeasesExcluded Assets, regardless (y) any deletions, dispositions or expirations of whether Arrow has obtained such assets, properties, Contracts and rights pursuant to Section 5.4 and (z) subject to compliance with Section 5.5(b), any necessary consents deletions, dispositions or expirations of such assets, properties, contracts and rights in the ordinary course of business consistent with past practice during the Pre-Closing Period.
(ii) Upon written notice to the assignment Company during the Pre-Closing Period and at the Buyer's option, in its sole discretion, the Buyer may determine to exclude any assets, properties, Contracts and rights from the Purchased Assets (including, without limitation, any "asset" having a negative value and the capital stock of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, Mill Creek Bank) which constitute shall then be deemed Excluded Assets under hereunder; provided that such exclusion shall not reduce the Purchase Price, except as provided in Section 2.22.1(a)(iv) that exist as of and Section 2.4 hereof. The Buyer may not determine to exclude any Purchased Businesses pursuant to this Section 2.1(a)(ii). In the Closing;
2.1.6 all of event the rights in or relating Buyer elects to intellectual property described in exclude any Residual Assets from the Ancillary Agreement relating Purchased Assets pursuant to intellectual propertythis Section 2.1(a)(ii), the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 Purchased Assets shall include all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12Cleanup Calls, to the extent such Cleanup Calls are separately transferable, unless the Buyer elects otherwise. In the event the Buyer elects to exclude the capital stock of Mill Creek Bank, pursuant to this Section 2.1(a)(ii), then as of the Closing (x) the Buyer agrees to lease on commercially reasonable terms consistent with a lease for a similar type of property in the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related geographic region with similar mortgage debt on such property to the BusinessSellers the Owned Real Premises located in Rapid City, South Dakota (as listed on Section 3.8(a) of the applicable Business Schedules), which Owned Real Premises shall not be deemed an Excluded Asset, but shall be transferred subject to the mortgage in favor of Mill Creek Bank, as in effect on the date hereof and (y) at the option of the Buyer, Mill Creek Bank shall continue to service the portion of the PL Business conducted outside of Mill Creek Bank on terms and conditions substantially the same as in effect on the date hereof.
2.1.14 (iii) Nothing contained in this Agreement, shall be construed to imply that the Buyer will assume the Excluded Servicing Liabilities or any Guarantees given to any holders of interests in a Securitization.
(iv) The Company and General Electric Capital Corporation or one or more of its affiliates ("GE") shall not enter into an asset purchase agreement for the purchase and sale of assets of the PL Business, CL Origination Business and/or HI Origination Business without the prior written approval of the Buyer. If the Company and GE enter into an asset purchase agreement in form and substance reasonably satisfactory to the Buyer and which is also approved on the Bankruptcy Court's docket pursuant to the GE Sale Order (the "GE Approved Agreement"), then (x) the Purchase Price shall be computed in accordance with Section 2.4 hereof, (y) the stock of Mill Creek Bank and the GE Purchased Assets shall be Excluded Assets and the PL Business, CL Origination Business and HI Origination Business shall be Excluded Businesses and (z) all of Arrow’s capital stock GE Assumed Liabilities and other voting interests Liabilities arising from, related to, in the Dagger Subsidiaries (collectivelyconnection with or with respect to Mill Creek Bank, the “Dagger Subsidiary Shares”)PL Business, the HI Origination Business, the CL Origination Business shall be Excluded Liabilities. The entry by the Company and GE into the GE Approved Agreement and the entry on the Bankruptcy Court's docket of the GE Sale Order shall be referred to herein as the "GE Condition." If the GE Sale Order is not entered by March 14, 2003, then this Section 2.1(a)(iv) shall thereafter be of no force and effect.
Appears in 1 contract
Purchase and Sale of Assets. Upon On the terms and subject to the terms and conditions hereofof this Agreement, at the Closing, Arrow shall Seller hereby agrees to sell, transfer assign, transfer, convey and assign deliver to Acquisition SubBuyer, and Acquisition Sub shall purchase Buyer, in reliance on the representations, warranties and covenants of Seller contained herein, hereby agrees to purchase, acquire and accept from ArrowSeller, free and clear of any Liens other than the Permitted Liens, all of Seller’s right, title and interest in and to each of the assets utilized following, but expressly excluding the Excluded Assets (the “Purchased Assets”):
(a) all Inventory (including any Inventory paid for but not yet delivered to or received by a Third Party on behalf of Seller and Inventory held by any Third Party), including the inventory set forth on Schedule 2.1(a) (the “Purchased Inventory”);
(b) all Intellectual Property Assets, including the Intellectual Property set forth on Schedule 2.1(b) or required to be listed on Schedule 4.11(a);
(c) all Intellectual Property Agreements and all rights thereunder, including the Intellectual Property Agreements set forth on Schedule 2.1(c) (collectively, the “Purchased IP Contracts”);
(d) all Collateral related to the Brands or current or planned Products, including all Collateral set forth on Schedule 2.1(d);
(e) all books, records, ledgers and files or other similar information of Seller (in any form or medium) related to, used or held for use in connection with the performance and technical and administrative support of the BusinessBrands or current or planned Products, including all customer lists, Personal Information, vendor lists, correspondence, mailing lists, revenue records, invoices, advertising materials, brochures, records of operation, standard forms of documents, manuals of operations or business procedures, photographs, blueprints, research files and materials, data books, Intellectual Property disclosures and information, media materials and plates, accounting records, litigation files, Permits and any documentation related thereto, any documentation related to current or planned Products within the following assets Brands and any documentation involving Governmental Entities (the “Dagger Assets”but excluding Seller Corporate Records), in each case free whether or not physically located on any of the physical premises of Seller;
(f) all Permits and clear all rights and incidents of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating interest therein specific to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangementsBrands or current or planned Products, including the contracts and other arrangements, proposals, bids and offers listed permits set forth on Schedule 2.1.1 (the “Dagger Engagements”2.1(f);
2.1.2 (g) all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Businesscredits, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, advance payments, security deposits, advances, escrows and other prepayments and prepaid items of Seller arising from or related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the ClosingBrands or current or planned Products;
2.1.6 (h) all of the rights in Claims against any Person arising from or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate related to the Business;
2.1.8 Brands or current or planned Products, whether accruing before, on or after the Closing Date, including: (i) all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets rights under Section 2.2)any Purchased IP Contract, including all furniturerights to receive payment for products sold and services rendered thereunder, fixturesto receive goods or services thereunder, machinery, office to assert Claims and to take other equipment and leasehold improvements relating to the Business and rightful actions in respect of Defaults thereof; (ii) all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all rights under or in respect of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger any Intellectual Property Assets, including all records rights to and documents relating Claims for Damages, restitution and injunctive relief for past, present and future infringement, dilution, misappropriation, unlawful imitation, misuse or Default, with the right but no obligation to xxx for such legal and equitable relief, and to collect, or otherwise recover, any such Damages, all rights of priority and protection of interests therein under the Dagger EngagementsLaws of any jurisdiction; and all rights to receive all royalties, fees, income, payments and other proceeds now or hereafter due or payable with respect to any and all of the Dagger Contractsforegoing and (iii) all rights (including rights to proceeds) under all guarantees, the Dagger Receivables, the Dagger Work-In-Process warranties and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies indemnities arising from or related to the BusinessBrands or current or planned Products, whether known or unknown, contingent or non-contingent;
2.1.12 (i) all Permits relating to goodwill and other intangible assets associated with the Business Brands or the Dagger Facilitiescurrent or planned Products, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible goodwill and intangible assets going concern value arising from or related to the Business.Brands or current or planned Products;
2.1.14 (j) all of Arrow’s capital stock Products ordered by Seller prior to the Closing Date but not paid for and other voting interests in not yet received by Seller prior to the Dagger Subsidiaries Closing Date under the purchase orders set forth on Schedule 4.11(k)(i) (collectively, the “Dagger Subsidiary SharesOpen Purchase Orders”);
(k) all parts, materials, molds, patterns, tools, tooling and all other tangible personal property (excluding miscellaneous furniture, phones or computers) owned or leased by Seller and used, held for use or intended for use in connection with the Brands or current or planned Products, including such items set forth on Schedule 2.1(k) (the “Purchased Equipment”), if any, together with any express or implied warranty by the manufacturers or sellers or lessors of any item or component part thereof and all maintenance records and other Documents relating thereto in the possession or control of Seller or any of its contract manufacturers (“Contract Manufacturers”) as of the date of this Agreement; and
(l) all assets set forth on Schedule 2.1(l).
Appears in 1 contract
Samples: Asset Purchase Agreement (Scott's Liquid Gold - Inc.)
Purchase and Sale of Assets. Upon the terms and subject to the terms and --------------------------- conditions hereofcontained in this Agreement, at the Closing, Arrow the Sellers shall sell, assign, transfer and assign convey to Acquisition Subthe Buyer, and Acquisition Sub the Buyer shall purchase purchase, acquire and acquire accept from Arrowthe Sellers the assets of the Sellers described below, free and clear of all Liens except Permitted Liens, (the "Purchased Assets"):
(a) the Pier IX Terminal and the Shipyard River Terminal (together, the "Terminals") and all tangible assets, personal property, fixtures and equipment (the "Tangible Property") specifically listed in Section 1.1(a) of the Disclosure Schedule, along with all Tangible Property located on the Real Property on the date hereof or used primarily in the operation of the Terminals; (excluding, however, any assets listed in Section 1.2(c) of the Disclosure Schedule);
(b) good and indefeasible fee simple title in and to those tracts or parcels of land described in Section 1.1(b) of the Disclosure Schedule hereto together with (i) all of the interest of the Sellers in any land in the beds of any public streets or public roads in front of or adjoining indicated portions of such land; (ii) any easements or rights-of-way appurtenant to such land and all water, wastewater, sewer, sanitary sewer and other utility rights related to such land; (iii) any reversionary rights attributable thereto; (iv) subject to Section 1.2(k), all rightclaims or demands whatsoever of the Sellers either in law or in equity in or to such land except to the extent provided otherwise in this Agreement or in any document executed herewith; (v) all buildings, title improvements, fixtures, storage tanks, pipelines, (along with all physical facilities used in connection with the ownership or operation of such pipelines, including all valves, meters, measurement stations, and equipment), electrical facilities, storage and shipping facilities and other fixed assets and personalty owned by the Sellers annexed, affixed or attached to such land, in each case insofar as such real property relates to either Terminal; and (vi) all of the Sellers' rights and interests in all personal property and physical facilities used in connection with the ownership or operation of the electrical facilities used in the Terminals including, without limitation, all transformers, power lines, meters, rectifiers, busbars, housings, circuit breakers and all other fixtures and equipment of every type and description used in connection therewith (collectively, the "Owner Real Property");
(c) all of the Sellers' rights and interest in all leases of real property set forth in Schedule 1.1(c) of the Disclosure Schedule and all leases of real property by the Sellers relating to the Terminals within five (5) miles of the Owned Real Property (the "Assigned Leases"). The real property subject to the Assigned Leases shall be referred to as the "Leased Real Property"; and with the Owned Real Property shall be referred to as the "Real Property";
(d) all of the Sellers' rights and interest in and to the assets utilized Contracts set forth in connection with the performance and technical and administrative support Section 1.1(d) of the Business, including Disclosure Schedule or used exclusively in the following assets operation of the Terminals (the “Dagger Assets”"Assigned Contracts"), in each case free ;
(e) any and clear all of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts the Sellers' books and other arrangements records exclusively relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 Terminals (the “Dagger Engagements”"Assigned Books and Records"), excluding, by way of clarification and not limitation, any Books and Records of the Sellers which relate exclusively to (i) organizational or governance proceedings of the Sellers, (ii) the Retained Assets, or (iii) the Pre-Closing Liabilities;
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 f) all of the leases, subleases, licenses or other agreements for Sellers' goodwill exclusively related to the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”)Terminals;
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2g) that exist as of the Closing;
2.1.6 all of the Sellers' rights and interest in or relating and to intellectual property described the Intellectual Property set forth in Section 1.1(g) of the Disclosure Schedule;
(h) subject to Section 1.5, all Licenses used in the Ancillary Agreement relating to intellectual property, operation of the form Terminals or set forth in Section 1.1(h) of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12Disclosure Schedule, to the extent such Licenses are transferable to the same Buyer (the "Assigned Licenses");
(i) all of the Sellers' rights and interest in present and future insurance proceeds which may be transferred; andpayable under the insurance policies listed in Section 2.21 of the Disclosure Schedule insofar as such proceeds are payable in connection with any event or events occurring subsequent to the date hereof and affecting the Purchased Assets described in Section 1.1(a), (b) or (c);
2.1.13 all (k) any additional assets that fall within the categories listed above from time to time acquired primarily for use by the Terminals in the ordinary course of Arrow’s other tangible business between the date hereof and intangible assets the Closing Date, except for such property as may be used, sold, consumed or disposed of by the Sellers in the ordinary course of business prior to the Closing Date and in compliance with the terms and conditions of this Agreement. To the extent that any Purchased Assets of the Sellers primarily related to the BusinessTerminals are intended to be transferred to Buyer pursuant to the language of this Section 1.1 but are not listed the language of this Section 1.1 shall be controlling and such Purchased Assets nonetheless shall be transferred to Buyer for all purposes.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Princess Beverly Coal Holding Co Inc)
Purchase and Sale of Assets. Upon and The Seller agrees, subject to the other terms and conditions of this Agreement, to sell, transfer, convey, assign and deliver to Purchaser, and Purchaser agrees to purchase, accept and receive from Seller, on the Closing Date, the following assets, properties and rights free and clear of all encumbrances, except such encumbrances that arise under applicable law (collectively, the "Purchased Assets"): ----------------
(a) all overdrafts associated with all Deposit Liabilities assumed by Purchaser under Section 2.3 hereof;
(b) all of Seller's right, title and interest in and to all personal property, furniture, fixtures, leasehold improvements and equipment located at the ClosingBranches and owned by Seller, Arrow shall sellas listed on Schedule 2.1(b) hereto, transfer together with any manufacturer's warranties and assign maintenance or service agreements thereon which are in effect on the Closing Date and are assignable to Acquisition SubPurchaser ("Fixed Assets"); ------------
(c) all cash on hand ("Cash on Hand") maintained at the Branches as ------------ of the close of business on the Closing Date;
(d) Seller's rights under, or created by, the contracts relating to the operation or maintenance of the Branches that are assignable by Seller to Purchaser, which contracts are identified on Schedule 2.1(d) hereto (the "Assumed Contracts"); -----------------
(e) The Safe Deposit Boxes;
(f) all of Seller's rights as lessee under the Leases on the Catonsville, Ellicott City and Acquisition Sub shall purchase Oxxxxx Mxxxx Branches, which leases are identified on Schedule 2.1(f) hereto (the "Assumed ------- Leases"); and acquire from Arrow, ------
(g) all of Seller's right, title and interest in and to the assets utilized in connection with real property on which the performance Hxxxxxxx Branch is located and technical the buildings and administrative support improvements situated thereon, the legal descriptions of the Business, including the following assets which are set forth on Schedule 2.1(g) hereto (the “Dagger Assets”"Real Property"), in each case free and clear of all Security Interests, except Permitted Encumbrances:
2.1.1 all contracts and other arrangements relating to the Business pursuant to which Arrow is providing goods and/or services, and all proposals, bids and offers for future such contracts and arrangements, including the contracts and other arrangements, proposals, bids and offers listed on Schedule 2.1.1 (the “Dagger Engagements”);
2.1.2 all contracts and other arrangements pursuant to which Arrow formerly provided goods and/or services relating to the Business, excluding the contracts and other arrangements listed on Schedule 2.1.2 (the “Dagger Completed Engagements”);
2.1.3 all other contracts relating to the Business and to which Arrow is a party, including employment agreements, nondisclosure agreements, teaming agreements, joint ventures, joint marketing agreements, consulting agreements and subcontracts (the “Dagger Contracts”), but excluding the Dagger Leases, regardless of whether Arrow has obtained any necessary consents to the assignment of such Dagger Contracts;
2.1.4 all of the leases, subleases, licenses or other agreements for the use of physical locations listed on Schedule 2.1.4 (the “Dagger Leases”);
2.1.5 all prepaid expenses, deposits, advances, other prepayments and related rights paid or obtained by Arrow relating to the Business, (other than those, if any, which constitute Excluded Assets under Section 2.2) that exist as of the Closing;
2.1.6 all of the rights in or relating to intellectual property described in the Ancillary Agreement relating to intellectual property, the form of which is attached as Exhibit A (the “Intellectual Property Agreement”);
2.1.7 all of Arrow’s training materials, speaking materials and sales or promotional materials that relate to the Business;
2.1.8 all of Arrow’s tangible assets primarily relating to the Business (other than those tangible assets, if any, which constitute Excluded Assets under Section 2.2), including all furniture, fixtures, machinery, office and other equipment and leasehold improvements relating to the Business and all other tangible assets as materially listed on Schedule 2.1.8 (the “Dagger Tangible Assets”);
2.1.9 all of Arrow’s accounts receivable and unbilled accounts receivable and work-in-process that relate to the Business (the “Dagger Receivables” and the “Dagger Work-In-Process,” respectively);
2.1.10 all books, papers, ledgers, documents and records relating to the Dagger Assets, including all records and documents relating to the Dagger Engagements, the Dagger Contracts, the Dagger Receivables, the Dagger Work-In-Process and the Dagger Obligations (provided that Arrow may retain copies of such books, papers, ledgers, documents and records), as well as complete copies of all other books, papers, ledgers, documents and records relating to the Dagger Assets.
2.1.11 all inventory and supplies related to the Business;
2.1.12 all Permits relating to the Business or the Dagger Facilities, including the permits listed on Schedule 2.1.12, to the extent the same may be transferred; and
2.1.13 all of Arrow’s other tangible and intangible assets related to the Business.
2.1.14 all of Arrow’s capital stock and other voting interests in the Dagger Subsidiaries (collectively, the “Dagger Subsidiary Shares”).. -------------
Appears in 1 contract
Samples: Purchase and Assumption Agreement (BCSB Bancorp Inc.)
