Purchase and Sale of Shares and Transferred Assets; Exclusion of Excluded Assets. (a) On the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall (or, as applicable, shall cause a Seller Subsidiary to) sell, transfer, convey, assign and deliver to Purchaser and, subject to Section 2.01(e), its Subsidiaries, and Purchaser shall (or, as applicable, shall cause any such Subsidiary to) purchase and accept from Seller (or, as applicable, such Seller Subsidiary) all of Seller’s and the Seller Subsidiaries’ right, title and interest in and to (x) the Transferred Intellectual Property, Transferred Software and Assumed In-Licenses, (y) the Shares and (z) each of the other assets, properties and rights (other than Intellectual Property Rights), of every kind and description, wherever located, real, personal or mixed, tangible or intangible, known or unknown, used (or held for use) exclusively in the conduct of the Business as the same shall exist at the Closing, including all such assets acquired by Seller or the Seller Subsidiaries after the date hereof and all assets shown on the balance sheet set forth in the Unaudited Financial Information and not disposed of prior to the Closing, but in each case of (x), (y) and (z) excluding the Excluded Assets (such assets, properties and rights, including the Transferred Intellectual Property, Transferred Software and Assumed In-Licenses, but excluding the Shares and the Excluded Assets, the “Transferred Assets”), free and clear of all Liens other than Permitted Liens or Liens created by or through Purchaser or any of its Affiliates, including: (i) [Intentionally Omitted]; (ii) the equity interests listed in Section 2.01(a)(ii)of the Seller Disclosure Schedule (the “Additional Securities”); (iii) the Assumed Contracts and Assumed In-Licenses, including all accounts receivable and prepaid expenses of the Business related thereto; (iv) the accounts receivable and prepaid expenses of the Business held by Seller and the Seller Subsidiaries not related to an Assumed Contract, Assumed In-License or a Shared Contract, to the extent reflected on the Closing Statement; (v) all claims, warranties, causes of action and rights of Seller and the Seller Subsidiaries to the extent relating to the Transferred Assets or the Assumed Liabilities; (vi) all books of account, present and former supplier and customer lists, correspondence, advertising, personnel and employment records, marketing and promotional materials (including website content), technical manuals and data, sales and purchase correspondence, records, documentation and files of the Companies (including, for clarification purposes, Tax Returns of the Companies that were not filed on a consolidated or combined basis with the Seller or any Affiliate of Seller that is itself not a Company); (vii) the Owned Real Property; (viii) the Transferred Equipment; (ix) copies of books of account, present and former supplier and customer lists, correspondence, advertising, personnel and employment records, marketing and promotional materials (including website content), technical manuals and data, sales and purchase correspondence, records, documentation and files, in each case used (or held for use) primarily in the conduct of the Business as of the Closing Date or primarily related to the Transferred Intellectual Property or the Transferred Software; (x) with respect to Contracts pursuant to which Seller (or one or more of the Seller Subsidiaries) provides to the counterparty both the services provided by the Business and other services, the rights thereunder (including in respect of any service order or work order) relating to the Business (such rights relating to the Business, the “Shared Contracts”); (xi) all transferable Permits used (or held for use) exclusively in the conduct of the Business, including the items listed on Section 3.08(b) of the Seller Disclosure Schedule; (xii) all goodwill associated exclusively with the Business or the Transferred Assets, together with the right to represent to third parties that Purchaser is the successor to the Business; and (xiii) all other tangible and intangible assets of any kind or description, wherever located, that are used or held for use exclusively in the conduct of the Business. (b) Notwithstanding anything in this Agreement to the contrary, Seller and the Seller Subsidiaries shall retain the rights, titles and interests in and to, and Purchaser shall have no rights (except to the extent otherwise provided for in this Agreement or any Ancillary Agreement) with respect to the following assets (such assets, the “Excluded Assets”): (i) all the business, properties, assets, goodwill and rights of whatever kind and nature, real or personal, tangible or intangible that are owned, leased or licensed by Seller and its Subsidiaries on the Closing Date and used or held for use primarily in the operation or conduct of any business of Seller and its Subsidiaries other than the Business; (ii) the minute books, stock ledgers, Tax records and Tax-related documents of Seller and the Seller Subsidiaries, unless they relate exclusively to the Business or the Transferred Assets and are needed for Purchaser to meet its Tax compliance requirements for periods ending after the Closing Date; (iii) all claims, warranties, causes of action and rights of Seller and its Subsidiaries against any third party relating to any Retained Liability or to any Liability for which Seller or any of the Seller Subsidiaries is responsible under this Agreement; (iv) all rights of Seller and the Seller Subsidiaries under this Agreement and the Ancillary Agreements; (v) except to the extent otherwise provided in Section 5.06, all current and prior insurance policies 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; (vi) any assets used primarily for the purpose of providing Overhead and Shared Services and, other than as provided in the Transition Services Agreement, any rights of the Business to receive from Seller or any of its Affiliates (other than the Companies) any Overhead and Shared Services; (vii) all Software used or held for use by Seller and the Seller Subsidiaries, other than the Transferred Software; (viii) except (A) for the Transferred Intellectual Property and (B) as otherwise expressly provided in the Ancillary Agreements, all rights relating to any Intellectual Property Rights owned by Seller or any of its Subsidiaries (including in the VeriSign word xxxx); (ix) all cash, cash equivalents and bank accounts or similar cash items of Seller and the Seller Subsidiaries (whether or not reflected on the books of Seller or the Seller Subsidiaries as of the Closing Date); (x) all stock or other equity interests in any Person, other than the Shares and Additional Securities; (xi) all records prepared by Seller or any of its Subsidiaries or their respective advisors to facilitate the sale of the Shares and the Business to Purchaser and not otherwise related to the operation of the Business; (xii) except as expressly set forth to the contrary in Article VI, all trust funds or other entities holding assets (or, in the case of a dedicated bank account held by Seller, the assets of such account) in respect of the Seller Benefit Plans; and (xiii) any assets set forth in Section 2.01(b)(xiii)
Appears in 1 contract
Purchase and Sale of Shares and Transferred Assets; Exclusion of Excluded Assets. (a) On the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall and each Seller Subsidiary sell, transfer, convey and assign to Purchaser (or, as applicable, shall cause a Seller Subsidiary toone or more wholly owned Subsidiaries of Purchaser designated by Purchaser not less than five (5) sell, transfer, convey, assign and deliver Business Days prior to Purchaser and, subject to Section 2.01(ethe Closing Date), its Subsidiaries, and Purchaser shall (or, as applicable, shall cause any such wholly-owned Subsidiary or Subsidiaries of Purchaser to) purchase and accept from Seller (or, as applicable, such Seller Subsidiary) all of Seller’s and the Seller Subsidiaries’ right, title and interest in and to (x) the Transferred Intellectual Property, Transferred Software and Assumed In-Licenses, (y) the Shares and (z) each of the other following assets, properties and rights (other than Intellectual Property Rights), of every kind and description, wherever located, real, personal or mixed, tangible or intangible, known or unknown, used (or held for use) exclusively in the conduct of the Business as the same shall exist at the Closing, including all such assets acquired by Seller or the Seller Subsidiaries after the date hereof and all assets shown on the balance sheet set forth in the Unaudited Financial Information and not disposed of prior to the Closing, but in each case of (x), (y) and (z) excluding the Excluded Assets (such assets, properties and rights, including the Transferred Intellectual Property, Transferred Software and Assumed In-Licenses, but excluding the Shares and the Excluded AssetsShares, the “Transferred Assets”), free and clear of all Liens other than Permitted Liens or Liens created by or through Purchaser or any of its Affiliates, including:
(i) [Intentionally Omitted]the Shares;
(ii) the equity interests listed in Section 2.01(a)(ii)of the Seller Disclosure Schedule (the “Additional Securities”);
(iii) the Assumed Contracts and Assumed In-Licenses, (including all accounts receivable and prepaid expenses of the Business related thereto);
(iviii) the accounts receivable and prepaid expenses of the Business held by Seller and the Seller Subsidiaries not related to an Assumed ContractContract or Shared Contract that Purchaser agrees in writing to acquire, Assumed In-License or a Shared Contract, but only to the extent reflected on the Closing Statement;
(viv) all claims, warranties, causes of action and rights of Seller and the Seller Subsidiaries to the extent relating to the Transferred Assets or the Assumed LiabilitiesEquipment;
(viv) all copies of books of account, present and former supplier and customer lists, correspondence, advertising, personnel and employment records, marketing and promotional materials (including website content), technical manuals and data, sales and purchase correspondence, records, documentation and files of the Companies (including, for clarification purposes, Tax Returns of the Companies that were not filed on a consolidated or combined basis with the Seller or any Affiliate of Seller that is itself not a Company);
(vii) the Owned Real Property;
(viii) the Transferred Equipment;
(ix) copies of books of account, present and former supplier and customer lists, correspondence, advertising, personnel and employment records, marketing and promotional materials (including website content), technical manuals and data, sales and purchase correspondence, records, documentation records and files, whether in hard copy or computer format and any other information reduced to writing or other physical or tangible media relating to the Business, in each case exclusively used (or held for use) primarily use in the conduct of the Business as Business, and, to the extent permitted by applicable Law, copies of the Closing Date or primarily related personnel and employment records relating to Transferred Employees;
(vi) the Transferred Intellectual Property or the Transferred SoftwareProperty;
(xvii) with respect to Contracts pursuant to which Seller (or one or more of the Seller its Subsidiaries) provides to the counterparty both the services provided by the Business and other services, the rights thereunder portions thereof (including in respect of any service order or work order) relating to the Business (such rights portions of such Contracts relating to the Business, the “Customer Shared Contracts”);
(xiviii) all transferable Permits used (or held for use) exclusively in with respect to the conduct of the Business, including the items Contracts listed on Section 3.08(b2.01(a)(viii) of the Seller Disclosure ScheduleSchedule and any other Contracts pursuant to which Seller (or one or more of its Subsidiaries) receives from the counterparty services or software licenses (other than Overhead and Shared Services) for use to a not immaterial extent both in the Business and in a business unit of Seller (or any of its Subsidiaries) other than the Business, the portions thereof (including in respect of any service order or work order) relating to the Business (such portions of such Contracts relating to the Business, the “Vendor Shared Contracts” and together with the Customer Shared Contracts, the “Shared Contracts”)
(ix) subject to Section 2.01(b)(iii), all claims, causes of action and rights relating to the Business and accruing after the Closing or against any third party relating to any Assumed Liability or to any Liability for which Purchaser is responsible under this Agreement, including any express or implied warranty, guarantee of performance or similar agreement or obligation made by the manufacturer, supplier or seller of a Transferred Asset that is not a Supplier Warranty Agreement, and in the case of Supplier Warranty Agreements, any proceeds actually recovered by Seller or any Subsidiary to the extent allocable to the Transferred Assets;
(xiix) all goodwill associated other properties, assets and rights used exclusively with in the Business or the Transferred that are not Excluded Assets, together with the right to represent to third parties that Purchaser is the successor to the Business; and
(xiiixi) all other tangible and intangible assets of any kind or description, wherever located, that are used or held for use exclusively Seller’s goodwill in the conduct of the BusinessBusiness as a going concern.
(b) Notwithstanding anything in this Agreement to the contrary, Seller and the Seller Subsidiaries shall retain the rightstheir respective right, titles title and interests interest in and to, and Purchaser shall have no rights (except to the extent otherwise provided for in this Agreement or any Ancillary Agreement) with respect to the right, title and interest of Seller and the Seller Subsidiaries in and to, the following assets (such assets, the “Excluded Assets”):
(i) all the business, properties, assets, goodwill and rights of whatever kind and nature, real or personal, tangible or intangible that are owned, leased or licensed by Seller and its the Seller Subsidiaries on as of the Closing Date and used or held for use primarily in the operation or conduct of any business of Seller and its the Seller Subsidiaries other than the BusinessBusiness (including the mobile delivery gateway business);
(ii) the minute books, stock ledgers, Tax records and Tax-related documents of Seller and the Seller Subsidiaries, unless they relate exclusively to the Business or the Transferred Assets and are needed for Purchaser to meet its Tax compliance requirements for periods ending after the Closing Date;
(iii) all claims, warranties, causes of action and rights of Seller and its the Seller Subsidiaries (A) relating to the Business and accruing prior to the Closing, other than the accounts receivable and prepaid expenses relating to the Assumed Contracts and the Shared Contracts, as applicable, and the assets described in Section 2.01(a)(iii), (B) against any third party relating to any Retained Liability or to any Liability for which Seller or any of the Seller Subsidiaries is responsible under this AgreementAgreement or (C) under any Supplier Warranty Agreement (including rights of set-off, rights to refunds and rights of recoupment thereunder);
(iv) all rights to Tax refunds, credits or similar benefits relating to the Transferred Assets or the Business attributable to periods, or portions of periods, ending on or before the Closing (which, in case of a Straddle Period, shall be allocated among the parties in a manner consistent with Section 7.03);
(v) all rights of Seller and the Seller Subsidiaries under this Agreement and the Ancillary Agreements;
(vvi) except to the extent otherwise provided in Section 5.06, all current and prior insurance policies 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;
(vivii) any assets used primarily for the purpose of providing Overhead and Shared Services and, other than as provided in the Transition Services Agreement, any rights of the Business to receive from Seller or any of its Affiliates (other than the CompaniesICX) any Overhead and Shared Services;
(viiviii) all Software used or held for use by Seller and the Seller Subsidiaries, software other than (A) the Transferred SoftwareSoftware and (B) other software and computer databases for which Purchaser has obtained a license (or other right to use) as set forth in the definition of “Transferred Equipment”;
(viiiix) except (A) for the Transferred Intellectual Property and (B) as otherwise expressly provided in the Ancillary AgreementsIntellectual Property License Agreement or the Transition Services Agreement, all rights relating to any Intellectual Property Rights owned by of Seller or any of its the Seller Subsidiaries (including in the VeriSign word xxxxSeller’s name);
(ixx) all cash, cash equivalents and bank accounts or similar cash items of Seller and the Seller Subsidiaries (whether or not reflected on the books of Seller or the Seller Subsidiaries as of the Closing DateClosing);
(xxi) all stock or other equity interests in any Person, other than the Shares and Additional SecuritiesShares;
(xixii) all records prepared by Seller or any of its Subsidiaries or their respective advisors to facilitate in connection with the sale of the Shares and the Business to Purchaser and not otherwise related to the operation of the Business;
(xii) except as expressly set forth to the contrary in Article VI, all trust funds or other entities holding assets (or, in the case of a dedicated bank account held by Seller, the assets of such account) in respect of the Seller Benefit PlansPurchaser; and
(xiii) any assets set forth in Section 2.01(b)(xiii)
Appears in 1 contract
Purchase and Sale of Shares and Transferred Assets; Exclusion of Excluded Assets. (a) On the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall and each Seller Subsidiary sell, transfer, convey and assign to Purchaser (or, as applicable, shall cause a Seller Subsidiary toone or more wholly owned Subsidiaries of Purchaser designated by Purchaser not less than five (5) sell, transfer, convey, assign and deliver Business Days prior to Purchaser and, subject to Section 2.01(ethe Closing Date), its Subsidiaries, and Purchaser shall (or, as applicable, shall cause any such wholly-owned Subsidiary or Subsidiaries of Purchaser to) purchase and accept from Seller (or, as applicable, such Seller Subsidiary) all of Seller’s and the Seller Subsidiaries’ right, title and interest in and to (x) the Transferred Intellectual Property, Transferred Software and Assumed In-Licenses, (y) the Shares and (z) each of the other following assets, properties and rights (other than Intellectual Property Rights), of every kind and description, wherever located, real, personal or mixed, tangible or intangible, known or unknown, used (or held for use) exclusively in the conduct of the Business as the same shall exist at the Closing, including all such assets acquired by Seller or the Seller Subsidiaries after the date hereof and all assets shown on the balance sheet set forth in the Unaudited Financial Information and not disposed of prior to the Closing, but in each case of (x), (y) and (z) excluding the Excluded Assets (such assets, properties and rights, including the Transferred Intellectual Property, Transferred Software and Assumed In-Licenses, but excluding the Shares and the Excluded AssetsShares, the “Transferred Assets”), free and clear of all Liens other than Permitted Liens or Liens created by or through Purchaser or any of its Affiliates, including:
(i) [Intentionally Omitted]the Shares;
(ii) the equity interests listed in Section 2.01(a)(ii)of the Seller Disclosure Schedule (the “Additional Securities”);
(iii) the Assumed Contracts and Assumed In-Licenses, (including all accounts receivable and prepaid expenses of the Business related thereto);
(iviii) the accounts receivable and prepaid expenses of the Business held by Seller and the Seller Subsidiaries not related to an Assumed ContractContract or Shared Contract that Purchaser agrees in writing to acquire, Assumed In-License or a Shared Contract, but only to the extent reflected on the Closing Statement;
(viv) all claims, warranties, causes of action and rights of Seller and the Seller Subsidiaries to the extent relating to the Transferred Assets or the Assumed LiabilitiesEquipment;
(viv) all copies of books of account, present and former supplier and customer lists, correspondence, advertising, personnel and employment records, marketing and promotional materials (including website content), technical manuals and data, sales and purchase correspondence, records, documentation and files of the Companies (including, for clarification purposes, Tax Returns of the Companies that were not filed on a consolidated or combined basis with the Seller or any Affiliate of Seller that is itself not a Company);
(vii) the Owned Real Property;
(viii) the Transferred Equipment;
(ix) copies of books of account, present and former supplier and customer lists, correspondence, advertising, personnel and employment records, marketing and promotional materials (including website content), technical manuals and data, sales and purchase correspondence, records, documentation records and files, whether in hard copy or computer format and any other information reduced to writing or other physical or tangible media relating to the Business, in each case exclusively used (or held for use) primarily use in the conduct of the Business as Business, and, to the extent permitted by applicable Law, copies of the Closing Date or primarily related personnel and employment records relating to Transferred Employees;
(vi) the Transferred Intellectual Property or the Transferred SoftwareProperty;
(xvii) with respect to Contracts pursuant to which Seller (or one or more of the Seller its Subsidiaries) provides to the counterparty both the services provided by the Business and other services, the rights thereunder portions thereof (including in respect of any service order or work order) relating to the Business (such rights portions of such Contracts relating to the Business, the “Customer Shared Contracts”);
(xiviii) all transferable Permits used (or held for use) exclusively in with respect to the conduct of the Business, including the items Contracts listed on Section 3.08(b2.01(a)(viii) of the Seller Disclosure ScheduleSchedule and any other Contracts pursuant to which Seller (or one or more of its Subsidiaries) receives from the counterparty services or software licenses (other than Overhead and Shared Services) for use to a not immaterial extent both in the Business and in a business unit of Seller (or any of its Subsidiaries) other than the Business, the portions thereof (including in respect of any service order or work order) relating to the Business (such portions of such Contracts relating to the Business, the “Vendor Shared Contracts” and together with the Customer Shared Contracts, the “Shared Contracts”)
(ix) subject to Section 2.01(b)(iii), all claims, causes of action and rights relating to the Business and accruing after the Closing or against any third party relating to any Assumed Liability or to any Liability for which Purchaser is responsible under this Agreement, including any express or implied warranty, guarantee of performance or similar agreement or obligation made by the manufacturer, supplier or seller of a Transferred Asset that is not a Supplier Warranty Agreement, and in the case of Supplier Warranty Agreements, any proceeds actually recovered by Seller or any Subsidiary to the extent allocable to the Transferred Assets;
(xiix) all goodwill associated other properties, assets and rights used exclusively with in the Business or the Transferred that are not Excluded Assets, together with the right to represent to third parties that Purchaser is the successor to the Business; and
(xiiixi) all other tangible and intangible assets of any kind or description, wherever located, that are used or held for use exclusively Seller’s goodwill in the conduct of the BusinessBusiness as a going concern.
(b) Notwithstanding anything in this Agreement to the contrary, Seller and the Seller Subsidiaries shall retain the rightstheir respective right, titles title and interests interest in and to, and Purchaser shall have no rights (except to the extent otherwise provided for in this Agreement or any Ancillary Agreement) with respect to the right, title and interest of Seller and the Seller Subsidiaries in and to, the following assets (such assets, the “Excluded Assets”):
(i) all the business, properties, assets, goodwill and rights of whatever kind and nature, real or personal, tangible or intangible that are owned, leased or licensed by Seller and its the Seller Subsidiaries on as of the Closing Date and used or held for use primarily in the operation or conduct of any business of Seller and its the Seller Subsidiaries other than the BusinessBusiness (including the mobile delivery gateway business);
(ii) the minute books, stock ledgers, Tax records and Tax-related documents of Seller and the Seller Subsidiaries, unless they relate exclusively to the Business or the Transferred Assets and are needed for Purchaser to meet its Tax compliance requirements for periods ending after the Closing Date;
(iii) all claims, warranties, causes of action and rights of Seller and its the Seller Subsidiaries (A) relating to the Business and accruing prior to the Closing, other than the accounts receivable and prepaid expenses relating to the Assumed Contracts and the Shared Contracts, as applicable, and the assets described in Section 2.01(a)(iii), (B) against any third party relating to any Retained Liability or to any Liability for which Seller or any of the Seller Subsidiaries is responsible under this AgreementAgreement or (C) under any Supplier Warranty Agreement (including rights of set-off, rights to refunds and rights of recoupment thereunder);
(iv) all rights to Tax refunds, credits or similar benefits relating to the Transferred Assets or the Business attributable to periods, or portions of periods, ending on or before the Closing (which, in case of a Straddle Period, shall be allocated among the parties in a manner consistent with Section 7.03);
(v) all rights of Seller and the Seller Subsidiaries under this Agreement and the Ancillary Agreements;
(vvi) except to the extent otherwise provided in Section 5.06, all current and prior insurance policies 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;
(vivii) any assets used primarily for the purpose of providing Overhead and Shared Services and, other than as provided in the Transition Services Agreement, any rights of the Business to receive from Seller or any of its Affiliates (other than the CompaniesICX) any Overhead and Shared Services;
(viiviii) all Software used or held for use by Seller and the Seller Subsidiaries, software other than (A) the Transferred SoftwareSoftware and (B) other software and computer databases for which Purchaser has obtained a license (or other right to use) as set forth in the definition of “Transferred Equipment”;
(viiiix) except (A) for the Transferred Intellectual Property and (B) as otherwise expressly provided in the Ancillary AgreementsIntellectual Property License Agreement or the Transition Services Agreement, all rights relating to any Intellectual Property Rights owned by of Seller or any of its the Seller Subsidiaries (including in the VeriSign word xxxxSeller’s name);
(ixx) all cash, cash equivalents and bank accounts or similar cash items of Seller and the Seller Subsidiaries (whether or not reflected on the books of Seller or the Seller Subsidiaries as of the Closing DateClosing);
(xxi) all stock or other equity interests in any Person, other than the Shares and Additional SecuritiesShares;
(xixii) all records prepared by Seller or any of its Subsidiaries or their respective advisors to facilitate in connection with the sale of the Shares and the Business to Purchaser and not otherwise related to the operation of the Business;
(xii) except as expressly set forth to the contrary in Article VI, all trust funds or other entities holding assets (or, in the case of a dedicated bank account held by Seller, the assets of such account) in respect of the Seller Benefit PlansPurchaser; and
(xiii) any assets set forth in Section 2.01(b)(xiii)) of the Seller Disclosure Schedule.
(c) Subject to the terms and conditions hereof, Seller and Purchaser shall, or shall cause their respective Subsidiaries to, enter into such agreements or instruments (the “Foreign Acquisition Agreements”) providing for the sale, transfer, assignment or other conveyance of any Transferred Assets located outside the United States as, pursuant to requirements of applicable local Law, would be required or advisable to be documented separately from this Agreement, which Foreign Acquisition Agreements shall be negotiated in good faith between Seller and Purchaser, but in all events shall be consistent with the terms of this Agreement.
(d) Seller shall have the right to retain, following the Closing, copies of any book, record, literature, list and any other written or recorded information constituting Transferred Assets to which Seller in good faith determines it is reasonably likely to need access for bona fide business or legal purposes relating to any Excluded Assets, Retained Liability, Retained Litigation, ICX Excluded Liabilities or the operation of businesses of Seller and its Subsidiaries other than the Business.
Appears in 1 contract
Purchase and Sale of Shares and Transferred Assets; Exclusion of Excluded Assets. (a) On the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall (or, as applicable, shall cause a Seller Subsidiary to) sell, transfer, convey, assign and deliver to Purchaser and, subject to Section 2.01(e), its Subsidiaries, and Purchaser shall (or, as applicable, shall cause any such Subsidiary to) purchase and accept from Seller (or, as applicable, such Seller Subsidiary) all of Seller’s and the Seller Subsidiaries’ right, title and interest in and to (x) the Transferred Intellectual Property, Transferred Software and Assumed In-Licenses, (y) the Shares and (z) each of the other assets, properties and rights (other than Intellectual Property Rights), of every kind and description, wherever located, real, personal or mixed, tangible or intangible, known or unknown, used (or held for use) exclusively in the conduct of the Business as the same shall exist at the Closing, including all such assets acquired by Seller or the Seller Subsidiaries after the date hereof and all assets shown on the balance sheet set forth in the Unaudited Financial Information and not disposed of prior to the Closing, but in each case of (x), (y) and (z) excluding the Excluded Assets (such assets, properties and rights, including the Transferred Intellectual Property, Transferred Software and Assumed In-Licenses, but excluding the Shares and the Excluded Assets, the “Transferred Assets”), free and clear of all Liens other than Permitted Liens or Liens created by or through Purchaser or any of its Affiliates, including:
(i) [Intentionally Omitted];
(ii) the equity interests listed in Section 2.01(a)(ii)of 2.01(a)(ii) of the Seller Disclosure Schedule (the “Additional Securities”);
(iii) the Assumed Contracts and Assumed In-Licenses, including all accounts receivable and prepaid expenses of the Business related thereto;
(iv) the accounts receivable and prepaid expenses of the Business held by Seller and the Seller Subsidiaries not related to an Assumed Contract, Assumed In-License or a Shared Contract, to the extent reflected on the Closing Statement;
(v) all claims, warranties, causes of action and rights of Seller and the Seller Subsidiaries to the extent relating to the Transferred Assets or the Assumed Liabilities;
(vi) all books of account, present and former supplier and customer lists, correspondence, advertising, personnel and employment records, marketing and promotional materials (including website content), technical manuals and data, sales and purchase correspondence, records, documentation and files of the Companies (including, for clarification purposes, Tax Returns of the Companies that were not filed on a consolidated or combined basis with the Seller or any Affiliate of Seller that is itself not a Company);
(vii) the Owned Real Property;
(viii) the Transferred Equipment;
(ix) copies of books of account, present and former supplier and customer lists, correspondence, advertising, personnel and employment records, marketing and promotional materials (including website content), technical manuals and data, sales and purchase correspondence, records, documentation and files, in each case used (or held for use) primarily in the conduct of the Business as of the Closing Date or primarily related to the Transferred Intellectual Property or the Transferred Software;
(x) with respect to Contracts pursuant to which Seller (or one or more of the Seller Subsidiaries) provides to the counterparty both the services provided by the Business and other services, the rights thereunder (including in respect of any service order or work order) relating to the Business (such rights relating to the Business, the “Shared Contracts”);
(xi) all transferable Permits used (or held for use) exclusively in the conduct of the Business, including the items listed on Section 3.08(b) of the Seller Disclosure Schedule;
(xii) all goodwill associated exclusively with the Business or the Transferred Assets, together with the right to represent to third parties that Purchaser is the successor to the Business; and
(xiii) all other tangible and intangible assets of any kind or description, wherever located, that are used or held for use exclusively in the conduct of the Business.
(b) Notwithstanding anything in this Agreement to the contrary, Seller and the Seller Subsidiaries shall retain the rights, titles and interests in and to, and Purchaser shall have no rights (except to the extent otherwise provided for in this Agreement or any Ancillary Agreement) with respect to the following assets (such assets, the “Excluded Assets”):
(i) all the business, properties, assets, goodwill and rights of whatever kind and nature, real or personal, tangible or intangible that are owned, leased or licensed by Seller and its Subsidiaries on the Closing Date and used or held for use primarily in the operation or conduct of any business of Seller and its Subsidiaries other than the Business;
(ii) the minute books, stock ledgers, Tax records and Tax-related documents of Seller and the Seller Subsidiaries, unless they relate exclusively to the Business or the Transferred Assets and are needed for Purchaser to meet its Tax compliance requirements for periods ending after the Closing Date;
(iii) all claims, warranties, causes of action and rights of Seller and its Subsidiaries against any third party relating to any Retained Liability or to any Liability for which Seller or any of the Seller Subsidiaries is responsible under this Agreement;
(iv) all rights of Seller and the Seller Subsidiaries under this Agreement and the Ancillary Agreements;
(v) except to the extent otherwise provided in Section 5.06, all current and prior insurance policies 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;
(vi) any assets used primarily for the purpose of providing Overhead and Shared Services and, other than as provided in the Transition Services Agreement, any rights of the Business to receive from Seller or any of its Affiliates (other than the Companies) any Overhead and Shared Services;
(vii) all Software used or held for use by Seller and the Seller Subsidiaries, other than the Transferred Software;
(viii) except (A) for the Transferred Intellectual Property and (B) as otherwise expressly provided in the Ancillary Agreements, all rights relating to any Intellectual Property Rights owned by Seller or any of its Subsidiaries (including in the VeriSign word xxxx);
(ix) all cash, cash equivalents and bank accounts or similar cash items of Seller and the Seller Subsidiaries (whether or not reflected on the books of Seller or the Seller Subsidiaries as of the Closing Date);
(x) all stock or other equity interests in any Person, other than the Shares and Additional Securities;
(xi) all records prepared by Seller or any of its Subsidiaries or their respective advisors to facilitate the sale of the Shares and the Business to Purchaser and not otherwise related to the operation of the Business;
(xii) except as expressly set forth to the contrary in Article VI, all trust funds or other entities holding assets (or, in the case of a dedicated bank account held by Seller, the assets of such account) in respect of the Seller Benefit Plans; and
(xiii) any assets set forth in Section 2.01(b)(xiii)
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