Purchase and Sale of the Assets. Except for the Excluded Assets set forth in Section 2.2 below, at and as of the Effective Time, the Sellers shall Transfer to the Purchaser, and the Purchaser shall purchase and accept from the Sellers, free and clear of all Liens to the maximum extent provided in the Sale Approval Order, all of the Sellers’ right, title and interest in and to the following assets (the “Transferred Assets”): (a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets); (b) the Equipment and Other Personalty whether located at the Transferred Facilities of the Sellers or elsewhere; (c) the Intellectual Property primarily used in the Business, including, without limitation, the patented or registered Intellectual Property set forth on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual Property; (d) all Inventory, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred Assets); (e) all rights of the Sellers under Assigned Contracts; (f) originals or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business (collectively, the “Books and Records”); (g) licenses and permits primarily used in the operation of the Business, to the extent transferable; (h) subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned and leased Real Property primarily used in the operation of the Business, each parcel of which is set forth on Schedule 2.1(h); (i) any warranties of third parties on any Transferred Assets; (j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets; (k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects); (l) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and (m) all other assets primarily related to the Business, other than any Excluded Assets.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Divine Inc), Asset Purchase Agreement (Divine Inc)
Purchase and Sale of the Assets. Except for Subject to the terms and conditions set forth in this Agreement, the Seller hereby agrees to sell, convey, transfer, assign and deliver to Buyer (effective as of 12:01 A.M. New Mexico time on the date of execution hereof) all of the assets owned by Seller existing on the date of Closing other than the Excluded Assets set forth in Section 2.2 (defined below), at and as of the Effective Timewhether real, the Sellers shall Transfer to the Purchaserpersonal, and the Purchaser shall purchase and accept from the Sellers, free and clear of all Liens to the maximum extent provided in the Sale Approval Order, all of the Sellers’ right, title and interest in and to the following assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets);
(b) the Equipment and Other Personalty whether located at the Transferred Facilities of the Sellers tangible or elsewhere;
(c) the Intellectual Property primarily used in the Businessintangible, including, without limitation, the patented following assets owned by Seller relating to or registered Intellectual Property set forth used or useful in the operation of the business as conducted by the Seller on and before the date hereof (the "Business") (all such assets being sold hereunder are referred to collectively herein as the "Assets"):
(a) all tangible personal property owned by Seller (such as machinery, equipment, leasehold improvements, furniture and fixtures, and vehicles), including, without limitation, that which is more fully described on Schedule 2.1(c1.1(a) hereto (collectively, the "Tangible Personal Property");
(b) all of the inventory owned by Seller, including without limitation, that which is more fully described on Schedule 1.1(b) hereto (collectively, the "Inventories");
(c) all of the Seller's intangible assets (the "Intangibles"), including without limitation, (i) all of the Seller's rights to the name under which it is incorporated or under which it currently does business, (ii) all of the Seller's rights to any patents, patent applications, trademarks and pending patent service marks (including registrations and applications or therefor), trade names, and copyrights and written know-how, trade secrets, licenses and sublicenses and all other applications for similar proprietary data and the registration of goodwill associated therewith (collectively, the "Intellectual Property") used or held in connection with the Business, including without limitation, that which is more fully described on Schedule 1.1(c) hereto (the "Seller Intellectual Property"), (iii) the Seller's telephone numbers, (iv) the sales and promotional literature, computer software, customer and supplier lists, drilling reports, historical bit records and tour sheets and all other records of the Seller relating to the Assets or the Business ("Retained Records"), excluding the corporate minute books, accounting records, files, tax returns and other financial data on whatever media, relating to the Seller or the Shareholders or the Excluded Assets. Buyer shall allow Seller reasonable access to the Retained Records for any reasonable purpose. Buyer agrees to retain the Retained Records for a period of five (5) years from the date of Closing;
(d) all Inventorythose leases, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as subleases, contracts, contract rights, and agreements relating to the Assets or the operation of the Closing Date that will be included in Business specifically listed on Schedule 1.1(d) hereto (collectively, the Transferred Assets"Contracts");
(e) all of the permits, authorizations, certificates, approvals, registrations, variances, waivers, exemptions, rights-of-way, franchises, ordinances, orders, licenses and other rights of the Sellers under Assigned Contracts;
(f) originals or copies of all books, financial every kind and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business character (collectively, the “Books and Records”);
(g"Permits") licenses and permits primarily used in relating principally to all or any of the Assets or to the operation of the Business, to including, but not limited to, those that are more fully described on Schedule 1.1(e) hereto (collectively, the extent transferable"Seller Permits");
(f) the goodwill and going concern value of the Business;
(g) the buildings and other improvements located on the real estate described in Schedule 3.5 hereto; and
(h) subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreementall other or additional privileges, owned rights, interests, properties and leased Real Property primarily used in the operation assets of the Business, each parcel of which is set forth on Schedule 2.1(h);
(i) any warranties of third parties on any Transferred Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosureand wherever located that are used in the Business or intended for use in the Business in connection with, confidentialityor that are necessary for the continued conduct of, non-competitionthe Business. The Assets shall not include the following (collectively, non-solicitation, assignment of invention and other agreements of a comparable nature with the "Excluded Assets"): (i) all present and former employees of the Sellers other than Eligible Employees who are hired real property described in Schedule 1.1 hereto owned by the Purchaser Seller and not being conveyed to the extent such agreements relate to the Transferred Assets and Buyer concurrently herewith, (ii) all Eligible Employees who are hired of the Seller's accounts receivable and all other rights of the Seller to payment for services rendered by the Purchaser whether Seller before Closing, it being understood that all of Seller's customers shall be billed on the date of Closing for services or not materials provided through that date and that Buyer will forward any payment on such agreements relate accounts received by it to Seller within one (1) business day of receipt; (iii) all cash accounts of the Transferred AssetsSeller and all xxxxx cash of the Seller kept on hand for use in the Business; and
(miv) all other receivables and prepaid expenses, including all right, title and interest of the Seller in and to all prepaid rentals, other prepaid expenses, bonds, deposits and financial assurance requirements, and other current assets primarily relating to any of the Assets or the Business; (v) all assets in possession of the Seller but owned by third parties or Shareholders; (vi) the corporate charter, related organizational documents and minute books of the Seller, financial books and records and tax returns; (vii) the cash consideration paid or payable by Buyer to Seller pursuant to Section 1.2 hereof; and (viii) the net deferred tax assets of Seller representing tax benefits available from operating loss carry forwards, pension plan assets of Seller representing excess contributions to the Businessdefined benefit pension plan, all buildings owned by Seller or Shareholders (other than those buildings referred to in Section 1.1(g) hereof), and any other assets described in Schedule 1.1 attached hereto as Excluded Assets.
Appears in 1 contract
Purchase and Sale of the Assets. Except for Upon the Excluded Assets terms and subject to ------------------------------- the conditions set forth in Section 2.2 belowthis Agreement, at each of Seller and as of the Effective TimeAffiliate agrees to sell, the Sellers shall Transfer convey, transfer, assign and deliver to the PurchaserBuyer, and the Purchaser shall Buyer agrees to purchase and accept acquire from each of Seller and Affiliate, on the Sellers, free and clear of all Liens to the maximum extent provided Closing Date (as defined in the Sale Approval OrderSection 1.4 hereof), all of the Sellers’ Seller's and Affiliate's right, title and interest in and to the following assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as all of the Closing Date that will be included in the Transferred Assets);
assets, properties and rights (bincluding all intellectual property rights and agreements relating thereto) the Equipment and Other Personalty whether located at the Transferred Facilities of the Sellers or elsewhere;
(c) the Intellectual Property primarily used in the Business, including, without limitation, the patented or registered Intellectual Property set forth on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual Property;
(d) all Inventory, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred Assets);
(e) all rights of the Sellers under Assigned Contracts;
(f) originals or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related relating to the Business (collectively, the “Books and Records”"Assets");
(g, including, without limitation, those ------ listed on Schedule 1.1(a) licenses and permits primarily used in the operation of the BusinessSeller --------------- Disclosure Schedule, to the extent transferable;
free and clear of any and all liens, pledges, claims, charges, actions, suits, proceedings, security interests or other restrictions or encumbrances of any kind (h"Liens") subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned and leased Real Property primarily used in the operation of the Business, each parcel of which is other than Liens set forth on Schedule 2.1(h----- -------- 1.1(b) of the Seller Disclosure Schedules (the "Permitted Liens") and Assumed ------ --------------- Liabilities (as defined in Section 1.2 hereof);
; provided, however, that "Assets" shall not include (ia) any warranties of third parties on Parent's, Affiliate's or Seller's right, title or interest in or to any Transferred Assets;
other intellectual property, asset or business of Parent, Affiliate or Seller that is not used or held for use in the Business, and (jb) all prepaid expenses, security deposits and other credits owed any refunds or rebates of Taxes paid by the Seller's Group (as defined in Section 2.13) with respect to the Sellers from third parties, Business or the Assets to the extent primarily related that such refund or rebate relates to a taxable period (or portion thereof) ending on or before the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to the Business, other than any Excluded AssetsDate.
Appears in 1 contract
Purchase and Sale of the Assets. Except for Subject to the Excluded Assets set forth in Section 2.2 belowterms and conditions of this Agreement, at and as of the Effective Time, the Sellers Seller shall Transfer to the (or cause to be Transferred to) Purchaser, and the Purchaser shall purchase and accept from the Sellers, free and clear of all Liens to the maximum extent provided in the Sale Approval OrderSeller, all of the Sellers’ Seller’s right, title and interest in and to the following assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets)License;
(b) the Equipment tooling listed and Other Personalty whether described on Schedule 2.1(b) attached hereto located at Red Eagle Toys Factory (China) Ltd., Zhenan Road, Shangiiao District, Changan Town, Dongguan, Guangdong, P.R. China (0000)0000000-0 (the Transferred Facilities of the Sellers or elsewhere“Tooling”);
(c) the Intellectual Property primarily used in the Business, including, without limitation, the patented or registered Intellectual Property set forth on Schedule 2.1(c) and pending patent applications or other applications all orders for the registration purchases of Intellectual PropertyLicensed Products;
(d) all Inventorythe Intellectual Property, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of whether owned or licensed, related to the Closing Date that will be included in the Transferred Assets)Licensed Products;
(e) all rights of the Sellers under Assigned Contractsraw materials, work in process and finished goods inventory owned by Seller, in each case of Licensed Products, wherever located, including without limitation the inventory located at Jam’n Logistics of California, 3000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (collectively, “Inventory”), which finished goods Inventory, as of the date hereof, is itemized on Schedule 2.1(e) attached hereto;
(f) except as set forth in Section 2.2, all rights of Seller under Designated Contracts, whether accruing before or after the Effective Time;
(g) all amounts due to Seller from Grand Toys International, Inc. related to a consignment sale of certain goods to Walmart US (the “Receivable”) in the current amount of $582,000;
(h) all accounts receivable and proceeds thereof (if any) derived from a sale of the Inventory after the date hereof (the “Inventory Receivables”); and
(i) originals or copies of all books, data, files, papers, financial and other records and information which has been reduced to written, recorded or encoded form, including, without limitation, sales and promotional literature, manuals and data, correspondence, personnel and employment records, customer lists, vendor lists, catalogs, research material, operating guidelines and practices, purchasing material and records, accounting records, research and development files, mailing lists, distribution lists, historical cost and pricing information, business plans and other similar property, in each case to the extent related to the Business Licensed Products (collectively, the “Books and Records”);
(g) licenses and permits primarily used in the operation of the Business, to the extent transferable;
(h) subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned and leased Real Property primarily used in the operation of the Business, each parcel of which is set forth on Schedule 2.1(h);
(i) any warranties of third parties on any Transferred Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to the Business, other than any Excluded Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Grand Toys International Inc)
Purchase and Sale of the Assets. Except for the Excluded Assets set forth in Section 2.2 below, at and as of the Effective Time, the Sellers shall Transfer to the Purchaser, and the Purchaser shall purchase and accept from the Sellers, free and clear of all Liens to the maximum extent provided in the Sale Approval Order, all of the Sellers’ ' right, title and interest in and to the following assets (the “Transferred Assets”"TRANSFERRED ASSETS"):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets);
(b) the Equipment and Other Personalty whether located at the Transferred Facilities of the Sellers or elsewhere;
(c) the Intellectual Property primarily used in the Business, including, without limitation, the patented or registered Intellectual Property set forth on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual Property;
(d) all Inventory, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred Assets);
(e) all rights of the Sellers under Assigned Contracts;
(f) originals or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business (collectively, the “Books and Records”"BOOKS AND RECORDS");
(g) licenses and permits primarily used in the operation of the Business, to the extent transferable;
(h) subject to the Purchaser’s 's right to reject any lease of Real Property in accordance with the terms of this Agreement, owned and leased Real Property primarily used in the operation of the Business, each parcel of which is set forth on Schedule 2.1(h);
(i) any warranties of third parties on any Transferred Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing (except the Lloyd's of London patent enforcement insurance policy which shall be transferred to the Purchaser) and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ ' directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all right, title and interest of the Sellers in the divine Interventures, inc. and the Viant Ventures, Inc. capital investment portfolios, whether or not any Contract related thereto purports to restrict the transferability of the same, to the extent transferable under the Bankruptcy Code free of such restrictions (it being understood that the Sellers shall use their reasonable best efforts to obtain any necessary Approvals to effect such transfers and in the event such assets cannot be transferred, then the Sellers shall continue to hold such assets in trust for the exclusive benefit of the Purchaser, and immediately following the receipt by the Sellers of any proceeds or other item of value with respect to any such assets, the Sellers shall immediately turn over the same to the Purchaser in the same form as received), and the non-core patent portfolios;
(m) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(mn) all other assets primarily related to the Business, other than any Excluded Assets.
Appears in 1 contract
Purchase and Sale of the Assets. (a) Except for the Excluded Assets set forth (as defined in Section 2.2 1.1(b) below), upon the terms and subject to the conditions of this Agreement, at and as of the Effective TimeClosing, the Sellers Buyer shall Transfer to purchase from the PurchaserSeller, and the Purchaser Seller shall purchase sell, convey, transfer, assign and accept from deliver to the SellersBuyer, all right, title and interest of the Seller in and to all of the Assets, free and clear of all Liens Encumbrances (other than Permitted Encumbrances). The foregoing transaction, together with the assumption of the Assumed Liabilities pursuant to Section 1.2(a), is hereinafter referred to as the “Asset Sale.” Subject to Section 1.1(b), the term “Assets” shall include the following:
(i) The Tangible Personal Property owned, used or held for use by the Seller primarily in the Business (the “Transferred Tangible Personal Property”);
(ii) All Accounts Receivable owed to the maximum Seller, subject to Section 1.1(b)(ii) and Section 5.4;
(iii) All Transferred Inventory, including the Inventory identified on Schedule 1.1(a)(iii);
(iv) To the extent provided transferable, all Permits and Governmental Permits held by the Seller that are used primarily in the Sale Approval OrderBusiness;
(v) Each of the Contracts relating primarily to the Business, including the Contracts set forth on Schedule 3.14 to which the Seller is a party (the “Assigned Contracts”) and the Seller’s right to all security deposits, prepaid expenses and other amounts, instruments and similar items related thereto;
(vi) To the extent transferable, each of the (A) Government Contracts to which the Seller is a party (the “Assigned Government Contracts”), and (B) Government Bids to which the Seller is a party, including in the cases of clauses (A) and (B), those required to be listed on Schedule 3.22(a);
(vii) All currently used and readily available sales support and promotional materials, advertising materials, and sales and marketing files of the Seller and related primarily to the Business;
(viii) All current customer lists, supplier lists, production records and available credit records, or similar records of all sales, and all other papers, books and records, to the extent used or held for use by the Seller primarily in connection with the Business, to the extent that such records may be transferred in accordance with Requirements of Law;
(ix) All Transferred Intellectual Property, including all of the Sellers’ Seller’s right, title and interest in and to the following assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets);
(b) the Equipment and Other Personalty whether located at the Transferred Facilities of the Sellers or elsewhere;
(c) the Intellectual Property primarily used in the Business, including, without limitation, the patented or registered all Intellectual Property set forth on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual Property;
(d) all Inventory, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred Assets1.1(a)(ix);
(ex) All of the Seller’s rights, claims, credits, causes of action or rights of set-off against third parties to the extent relating primarily to the Business or the Assets, and claims pursuant to all warranties, representations and guarantees made by suppliers, manufacturers, contractors and other third parties in connection with products or services purchased by or furnished to the Seller for use primarily in the Business or primarily affecting any of the Assets, but not, in any event, any claims under the Seller’s insurance policies (except to the extent otherwise provided in Section 6.3) or any other Contracts not included in the Assets;
(xi) All goodwill of the Business; and
(xii) All rights of the Sellers Seller under Assigned Contracts;each of the Leases required to be set forth on Schedule 3.10(e) to which the Seller is a party (the “Transferred Leases”).
(fb) originals or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case Notwithstanding anything to the extent related to contrary herein, the Assets do not include (1) all Government Property, (2) the rights, properties and assets (tangible and intangible, and wherever located) which are not used or held for use by the Seller primarily in connection with the Business nor identified in Section 1.1(a) or on Schedule 1.1(a), (3) all Intellectual Property (including the Licensed Intellectual Property) that is not Transferred Intellectual Property or Company Intellectual Property and (4) the following properties, assets and rights (the assets described in clauses (1) through (4) collectively, the “Books Excluded Assets”):
(i) All cash, cash equivalents, bank and Recordsother depository accounts and safe deposit boxes, demand accounts, certificates of deposit, time deposits, negotiable instruments and securities of or held by the Seller (other than as provided in Section 1.1(a)(v));
(ii) All Accounts Receivable, if any, owed from any Company to the Seller;
(iii) All corporate or organizational records and minute books of the Seller;
(iv) All refunds, rebates and credits of Taxes, Tax losses, loss and credit carryforwards, and other Tax attributes of the Seller relating to any period or portion thereof (and any such refunds received by the Buyer shall be promptly paid over by the Buyer to the Seller);
(v) All Tangible Personal Property that is not used or held for use primarily in the Business, including any such Tangible Personal Property identified on Schedule 1.1(b)(v);
(vi) All Inventory of the Seller, other than Transferred Inventory and the Inventory identified on Schedule 1.1(a)(iii);
(vii) Permits and Governmental Permits that are non-transferable or are set forth on Schedule 1.1(b)(vii) (the “Excluded Seller Permits”);
(gviii) licenses and permits primarily used in the operation of All insurance policies relating to the Business, any refunds paid or payable in connection with the cancellation or discontinuance of any insurance policies applicable to the extent transferableBusiness, and, except as provided in Sections 6.3(d) and 6.3(f), any claims made on any such insurance policies for all periods before, through and after the Closing Date;
(hix) subject All rights of the Seller under this Agreement or any Ancillary Agreement (including rights to the Purchaser’s right to reject Purchase Price and Final Purchase Price hereunder) or any lease of Real Property agreement, certificate, instrument or other document executed and delivered by the Seller or the Buyer in accordance connection with the terms transactions contemplated hereby, or any side agreement between the Seller and the Buyer entered into on or after the date of this Agreement;
(x) All real property owned by the Seller as of the Closing Date, owned including the PWRWB Facility, the Canoga Park Facility and leased Real Property primarily used the Seller’s interest in the operation Excluded Portion of the BusinessDeSoto Facility, each parcel of as well as all real property leases/subleases or license agreements to which Seller is a party other than the Transferred Leases;
(xi) Assets maintained pursuant to or in connection with the Excluded Liabilities set forth on Schedule 2.1(hin Section 1.2(b)(iv);
(ixii) any warranties of third parties on any Transferred Assets relating to United Technologies Research Center set forth in Schedule 1.1(b)(xiii) (the “Excluded UTRC Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects”);
(lxiii) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser All assets related to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who CSD Business that are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to the Business, other than any Excluded Assets; and
(xiv) The assets listed on Schedule 1.1(b)(xiv).
Appears in 1 contract
Purchase and Sale of the Assets. Except for the Excluded Assets set forth in Section 2.2 below, at (a) Purchase and as Sale of the Effective TimeAssets. Subject to the terms and conditions of this Agreement and on the basis of the representations, the Sellers shall Transfer warranties, covenants and agreements herein contained:
(i) The Company hereby sells, assigns and conveys to the Purchaser, and the Purchaser shall purchase hereby purchases, acquires and accept accepts from the SellersCompany, the Assets, free and clear of all any liens, charges, security interests, encumbrances or liabilities, including successor liabilities pursuant to Section 363 of the Bankruptcy Code (collectively, "Liens to or Encumbrances"). The Assets shall include the maximum extent provided in the Sale Approval Orderbusiness, all of the Sellers’ right, title and interest in and to the following other assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets);
(b) the Equipment and Other Personalty whether located at the Transferred Facilities of the Sellers or elsewhere;
(c) the Intellectual Property primarily used in connection with the Business, includingthe Assigned Contracts (as defined in Section 1(a)(iv)), equipment (other than the Designated Equipment, which shall be subject to the provisions of Section 1(a)(iii) below), the inventory (which shall be purchased pursuant to the terms of Section 1(a)(v) below and which shall not include the Raw Inventory (as 2 defined in Section 1(e) below)), financial books and records, of every kind and nature, real, personal, and mixed, tangible and intangible, wherever located, of the Company used in or in any way related to the Business and as further described on Schedule 1(a)(i) to be delivered to the Purchaser and attached hereto within twenty one (21) days from the date hereof, except for the assets also included on Schedule 1(a)(i) to be delivered to the Purchaser and attached hereto within ten (10) days from the date hereof (the "Excluded Assets"), which Excluded Assets shall include, without limitation, all accounts receivable (other than Purchaser Receivables (as defined in Section XI(j) below)), Raw Inventory and the patented or registered Intellectual Property set forth on Schedule 2.1(cLeases (as defined in Section I(g) below) and pending patent applications or other applications for the registration of Intellectual Property;
(d) all Inventory, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred Assets);
(e) all rights of the Sellers under Assigned Contracts;
(f) originals or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business (collectively, the “Books and Records”);
(g) licenses and permits primarily used in the operation of the Business, to the extent transferable;
(h) subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned and leased Real Property primarily used in the operation of the Business, each parcel of which is set forth on Schedule 2.1(h);
(i) any warranties of third parties on any Transferred Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related contract rights relating to the Business, other than the Assigned Contracts.
(ii) Except to the extent expressly set forth in this Agreement, in the order or orders of the Bankruptcy Court, or in any Excluded Assetsdocument, instrument or agreement executed or entered into pursuant hereto or contemporaneously herewith, the Purchaser shall not assume and shall have no responsibility with respect to, any and all liabilities or obligations of the Company, known or unknown, absolute or contingent, accrued or unaccrued, whether due or to become due (collectively, "Liabilities").
(iii) Set forth in Schedule I(a)(iii) to be delivered to the Purchaser and attached hereto within ten (10) days from the date hereof is a list of all equipment designated as "Designated Equipment." As soon as possible after the execution of this Agreement, the Company shall file in the Bankruptcy Court its motion for an order approving the terms and conditions of this Agreement (the "Motion"). The date for which a hearing is set on the Motion is hereinafter referred to as the "Motion Date." On a date which is not less than ten (10) days prior to the Motion Date, the Purchaser shall notify the Company of any Designated Equipment that it desires to purchase and the purchase price that the Purchaser is willing to pay for such Designated Equipment. On a date which is seven (7) days prior to the Motion Date, the Company shall notify the Purchaser if it accepts the offer for the Designated Equipment, and upon such acceptance, the Company shall give notice to the Bankruptcy Court by filing a notice in the Bankruptcy Case setting forth the Designated Equipment to be purchased and the proposed purchase price therefor. The purchase price for the Designated Equipment (the "Designated Equipment Price") shall be paid at the same time and in the same manner as the Initial Purchase Price. The purchase price for the Designated Equipment is $1,250,000.
(iv) On a date which is not less than thirty (30) days prior to the Motion Date (as defined above), the Purchaser shall notify the Company of any contract rights relating to the Business that the Purchaser will want assigned to it at the Closing. Any such contract rights shall be referred to herein as the "Assigned Contracts." Upon receipt of such notice, the Company shall make a timely motion to assume and assign the Assigned Contracts to the Purchaser on the Motion Date.
(v) At the Closing, the Company shall purchase all Work-in-Process Inventory (as defined below) used in connection with the Business at a purchase price (the "Inventory Purchase Price") which shall be equal to one hundred percent (100%) of the labor and material costs ("Labor and Material Costs") allocable to the Work-in-Process Inventory, as reflected in the Company's books and records and as calculated in accordance with generally accepted accounting principles ("GAPP"). The Company and the Purchaser shall agree on what constitutes the Work-in-Process Inventory to be purchased at the Closing and what constitutes the Raw Inventory (which shall be subject to the provisions of Section I(e) below, as well as the aggregate Inventory Purchase Price.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Saturn Electronics & Engineering Inc)
Purchase and Sale of the Assets. Except for (a) On the Excluded Assets set forth in Section 2.2 below, at terms and as of the Effective Time, the Sellers shall Transfer subject to the conditions of this Agreement, CCPS agrees to sell, assign, transfer, convey and deliver to the UK Purchaser or cause to be sold, assigned, transferred, conveyed and delivered to the UK Purchaser, and the Purchaser shall agrees to cause the UK Purchaser to purchase and accept from CCPS, on the Sellers, free and clear of all Liens to the maximum extent provided in the Sale Approval OrderClosing Date, all of CCPS's right, title and interest in and to all the Sellers’ assets and properties primarily used in the Business (except as set forth below), other than the Excluded Assets (the assets and properties to be purchased by the UK Purchaser being referred to as the "Assets"), including, without limitation, CCPS's right, title and interest in and to the following:
(i) the Business as a going concern;
(ii) any cash and cash equivalents, including cash on hand or in bank accounts on the Closing Date and relating exclusively to the Business;
(iii) all the Owned Real Property and all rights in respect of the Leased Real Property;
(iv) all furniture, fixtures, equipment, machinery and other tangible personal property used primarily in the conduct of the Business by CCPS, or otherwise owned by CCPS at the Closing Date for use primarily in the conduct of the Business and not otherwise included in clause (iii) above;
(v) all Inventories;
(vi) all Receivables relating to the Business;
(vii) all books of account, general, financial, tax and personnel records, invoices, shipping records, supplier lists, correspondence and other documents, records and files owned, associated with or employed by CCPS in the operation of the Business, other than organization documents, minute and stock record books and the corporate seal of CCPS;
(viii) the goodwill of CCPS relating to the Business;
(ix) the Transferred Intellectual Property of CCPS used exclusively in the Business, it being understood that the Purchasers shall have the right to use all of the Transferred Intellectual Property used by CCPS in the operation of the Business prior to Closing, subject to (i) the terms of any third party licenses and (ii) the terms of Section 5.11 hereunder;
(x) all claims, causes of action, choses in action, rights of recovery and rights of set-off of any kind (including rights under and pursuant to all warranties, representations and guarantees made by suppliers of products, materials or equipment, or components thereof), pertaining to, arising out of, and inuring to the benefit of CCPS in respect of the Business;
(xi) all sales and promotional literature, customer lists and other sales-related materials owned, associated with or employed by CCPS primarily in connection with the Business at the Closing Date, subject to Section 5.06;
(xii) all rights of CCPS under all contracts, licenses, sublicenses, agreements, leases, commitments, and sales and purchase orders relating primarily to the Business;
(xiii) all governmental and regulatory franchises, permits, licenses, agreements, waivers and authorizations held or used by CCPS in connection with, or required for, the Business, to the extent transferable; and
(xiv) all of CCPS's right, title and interest on the Closing Date in, to and under all other assets, rights and claims of every kind and nature used or intended to be used primarily in the Business.
(b) The Assets shall exclude CCPS's right, title and interest in and to the following assets (the “Transferred "Excluded Assets”"):
(ai) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets)Purchase Price Bank Account;
(bii) the Equipment organization documents, minute and Other Personalty whether located at stock record books and the Transferred Facilities corporate seal of the Sellers or elsewhereCCPS;
(ciii) the any Intellectual Property primarily used in the Business, including, without limitation, the patented or registered Intellectual Property set forth on Schedule 2.1(cnot transferred pursuant to Section 2.03(a)(ix) and pending patent applications or other applications for the registration of Intellectual Propertyhereunder;
(div) all Inventoryfurniture, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood fixtures, equipment, machinery and other tangible personal property located in that such schedule does not reflect Inventory as portion of the Closing Date Horsham Facility to be leased back to CCPS in accordance with Section 5.09 and that will be included in the Transferred Assets);
(e) all rights of the Sellers under Assigned Contracts;
(f) originals or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business (collectively, the “Books and Records”);
(g) licenses and permits are not used primarily used in the operation of the Business, subject to the extent transferableterms of the Lease Agreement;
(hv) all rights of CCPS in respect of the Excluded Assets and Excluded Liabilities;
(vi) any Tax refunds or credits of CCPS attributable to the Assets or the Business, relating to any taxable period, or any portion thereof, ending on or prior to the Closing Date (as provided by, and subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned and leased Real Property primarily used in the operation of the Business, each parcel of which is limitations set forth on Schedule 2.1(hin, Article VII);
(ivii) any warranties all insurance policies in respect of third parties on any Transferred the Business and the Assets;
(jviii) all prepaid expensesassets, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who that are hired by the Purchaser not related to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred AssetsBusiness; and
(mix) all other assets primarily related to rights of CCPS under this Agreement and the Business, other than any Excluded AssetsAncillary Agreements.
Appears in 1 contract
Purchase and Sale of the Assets. Except for Subject to the Excluded Assets terms and conditions set forth in Section 2.2 belowthis Agreement, at the Seller hereby agrees to sell, convey, transfer, assign and deliver to Buyer effective as of 12:01 A.M. Texas time on the Effective Time, date of execution hereof (the Sellers shall Transfer to the Purchaser, and the Purchaser shall purchase and accept from the Sellers, free and clear of all Liens to the maximum extent provided in the Sale Approval Order"Closing Date"), all of the Sellers’ right, title and interest in and to assets of the following assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of Seller existing on the Closing Date that will be included in other than the Transferred AssetsExcluded Assets (defined below);
(b) the Equipment and Other Personalty , whether located at the Transferred Facilities of the Sellers real, personal, tangible or elsewhere;
(c) the Intellectual Property primarily used in the Businessintangible, including, without limitation, the patented following assets owned by the Seller relating to or registered Intellectual Property set forth used or useful in the operation of the business as conducted by the Seller on and before the date hereof (the "Business") (all such assets being sold hereunder are referred to collectively herein as the "Assets"):
(a) all tangible personal property owned by Seller (such as machinery, equipment, leasehold improvements, furniture and fixtures, and vehicles), including, without limitation, that which is more fully described on Schedule 2.1(c1.1(a) hereto (collectively, the "Tangible Personal Property");
(b) all of the inventory owned by Seller, including without limitation, that which is more fully described on Schedule 1.1(b) hereto (collectively, the "Inventory");
(c) all of the Seller's intangible assets (the "Intangibles"), including without limitation, (i) all of the Seller's rights to the names under which it is incorporated or under which they currently do business, (ii) all of the Seller's rights to any patents, patent applications, trademarks and pending patent service marks (including registrations and applications or therefor), trade names, and copyrights and written know-how, trade secrets, licenses and sublicenses and all other applications for similar proprietary data and the registration of goodwill associated therewith (collectively, the "Intellectual Property") used or held in connection with the Business, including without limitation, that which is more fully described on Schedule 1.1(c) hereto, (iii) the Seller's telephone numbers, and (iv) the sales and promotional literature, computer software, customer and supplier lists and all other records of the Seller relating to the Assets or the Business, excluding the corporate minute books, accounting records, files, tax returns and other financial data on whatever media, relating to the Seller or the Shareholders or the Excluded Assets (the "Retained Records");
(d) all Inventoryleases, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as subleases, contracts, contract rights, and agreements relating to the Assets or the operation of the Closing Date that will be included in Business, including, without limitation those listed on Schedule 1.1(d) hereto (collectively, the Transferred Assets"Contracts");
(e) all of the permits, authorizations, certificates, approvals, registrations, variances, waivers, exemptions, rights-of-way, franchises, ordinances, orders, licenses and other rights of the Sellers under Assigned Contracts;
(f) originals or copies of all books, financial every kind and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business character (collectively, the “Books and Records”);
(g"Permits") licenses and permits primarily used in relating principally to all or any of the Assets or to the operation of the Business, to the extent transferableincluding, but not limited to, those that are more fully described on Schedule 1.1(e) hereto;
(hf) subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned goodwill and leased Real Property primarily used in the operation going concern value of the Business, each parcel of which is set forth on Schedule 2.1(h);; and
(i) any warranties of third parties on any Transferred Assets;
(jg) all prepaid expensesother or additional privileges, security deposits rights, interests, properties and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims assets of the Sellers Seller of every kind and description under all non-disclosureand wherever located that are used in the Business or intended for use in the Business in connection with, confidentialityor that are necessary for the continued conduct of, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to the Business, other than any Excluded Assets.
Appears in 1 contract
Purchase and Sale of the Assets. Except for (a) Subject to the Excluded Assets terms and conditions set forth in Section 2.2 belowthis Agreement, at Operating Seller hereby agrees to transfer, convey, assign and deliver to Buyer on the Closing Date, and Buyer agrees to acquire, all of Operating Seller's right, title and interest in the tangible and intangible assets used or useful in the operation of the Stations, together with any additions thereto between the date of this Agreement and the Closing Date, but excluding the Excluded Assets, the FCC Licenses and any assets disposed of between the date of this Agreement and the Closing Date in accordance with the provisions of this Agreement or the Local Marketing Agreement (such assets being conveyed being collectively referred to herein as the "Stations' Assets"), free and clear of any Lien, except for Permitted Liens, including the following:
(i) the Tangible Personal Property;
(ii) the Real Property;
(iii) the Assumed Contracts;
(iv) the Intangibles;
(v) all amounts payable to the Stations, if any, from the United States Copyright Office or such arbitral panels as may be appointed by the United States Copyright Office that relate to the period prior to the Effective Time and that have not been paid to Operating Seller as of the Effective Time;
(vi) all proprietary information, the Sellers shall Transfer technical information and data, maps, computer discs and tapes, FCC logs, plans, diagrams, blueprints and schematics relating to the Purchaser, Stations' Business;
(vii) all books and the Purchaser shall purchase and accept from the Sellers, free and clear of all Liens records relating solely to the maximum Stations' Business, including executed copies of the Assumed Contracts and account books of original entry and all records required by the FCC to be kept by the Stations;
(viii) all deposits and prepaid expenses of Operating Seller with respect to items that are prorated in Section 2.4 below (except as such relate to Excluded Assets);
(ix) equipment warranties to the extent provided in the Sale Approval Order, transferable by Operating Seller;
(x) Accounts Receivable; and
(xi) any and all of the Sellers’ Operating Seller's right, title and interest in and to the following assets (of Operating Seller used by Operating Seller in connection with the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule development and production of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets);television programming.
(b) Subject to the Equipment terms and Other Personalty whether located at the Transferred Facilities of the Sellers or elsewhere;
(c) the Intellectual Property primarily used in the Business, including, without limitation, the patented or registered Intellectual Property conditions set forth on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual Property;
(d) all Inventory, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred Assets);
(e) all rights of the Sellers under Assigned Contracts;
(f) originals or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business (collectively, the “Books and Records”);
(g) licenses and permits primarily used in the operation of the Business, to the extent transferable;
(h) subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned License Seller hereby agrees to transfer, convey, assign and leased Real Property primarily used deliver to Buyer on the Closing Date, and Buyer agrees to acquire, all of License Seller's right, title and interest in the operation of the Business, each parcel of which is set forth on Schedule 2.1(h);
(i) any warranties of third parties on any Transferred Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to the Business, other than any Excluded AssetsFCC Licenses.
Appears in 1 contract
Purchase and Sale of the Assets. Except for Subject to the Excluded Assets terms and conditions set forth in this Agreement, the Seller hereby agrees to sell, convey, transfer, assign and deliver to Buyer effective as of 11:59 P.M. Colorado time (the "Effective Time") on the date of delivery and payment of the cash consideration set forth in Section 2.2 below1.3 hereof, at and but in no event later than July 15, 1998 (the "Closing Date"), all of the assets of the Seller existing as of the Effective TimeTime other than the Excluded Assets (defined below), the Sellers shall Transfer to the Purchaserwhether real, and the Purchaser shall purchase and accept from the Sellerspersonal, free and clear of all Liens to the maximum extent provided in the Sale Approval Order, all of the Sellers’ right, title and interest in and to the following assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets);
(b) the Equipment and Other Personalty whether located at the Transferred Facilities of the Sellers tangible or elsewhere;
(c) the Intellectual Property primarily used in the Businessintangible, including, without limitation, the patented following assets owned by the Seller relating to or registered Intellectual Property set forth used or useful in the operation of the business as conducted by the Seller on and before the Effective Time (the "Business") (all such assets being sold hereunder are referred to collectively herein as the "Assets"):
(a) all tangible personal property owned by Seller (such as machinery, equipment, leasehold improvements, furniture and fixtures, and vehicles), including, without limitation, that which is more fully described on Schedule 2.1(c1.1(a) and pending patent applications or other applications for hereto (collectively, the registration of Intellectual "Tangible Personal Property;
(d) all Inventory, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred Assets");
(ea) all rights of the Sellers under Assigned Contracts;
(finventory owned by Seller, including without limitation, that which is more fully described on Schedule 1.1(b) originals or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business hereto (collectively, the “Books and Records”"Inventory");
(ga) all of the Seller's intangible assets (the "Intangibles"), including without limitation, (i) all of the Seller's rights to the name under which it is incorporated or under which it currently does business, (ii) all of the Seller's rights to any patents, patent applications, trademarks and service marks (including registrations and applications therefor), trade names, and copyrights and written know-how, trade secrets, licenses and permits primarily sublicenses and all other similar proprietary data and the goodwill associated therewith (collectively, the "Intellectual Property") used or held in connection with the Business, including without limitation, that which is more fully described on Schedule 1.1(c) hereto (the "Seller Intellectual Property"), (iii) the Seller's telephone numbers, and (iv) the sales and promotional literature, computer software, customer and supplier lists and all other records of the Seller relating to the Assets or the Business, excluding the corporate minute books, accounting records, files, tax returns and other financial data on whatever media, relating to the Seller or the Shareholder or the Excluded Assets (the "Retained Records");
(a) those leases, subleases, contracts, contract rights and agreements relating to the Assets or the operation of the Business listed on Schedule 1.1(d) hereto (collectively, the "Contracts");
(a) all of the permits, exemptions from permit requirements, authorizations, certificates, approvals, registrations, variances, waivers, exemptions, rights-of-way, franchises, ordinances, orders, licenses and other rights of every kind and character (collectively, the "Permits") relating to all or any of the Assets or to the operation of the Business, to the extent transferableincluding, but not limited to, those that are more fully described on Schedule 1.1(e) hereto;
(ha) subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned goodwill and leased Real Property primarily used in the operation going concern value of the Business, each parcel of which is set forth on Schedule 2.1(h);
(i) any warranties of third parties on any Transferred Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to the Business, other than any Excluded Assets.
Appears in 1 contract
Purchase and Sale of the Assets. Except for Subject to the Excluded Assets terms and conditions set forth in Section 2.2 below, at and as of the Effective Timethis Agreement, the Sellers shall Transfer Seller hereby agrees to sell, convey, transfer, assign and deliver to the Purchaser, and the Purchaser shall purchase and accept from the Sellers, free and clear of all Liens to the maximum extent provided in the Sale Approval Order, all of the Sellers’ right, title and interest in and to Buyer the following assets of the Seller, on an “AS IS/WHERE IS/WITH ALL FAULTS” basis (all of such assets being sold hereunder are referred to collectively herein as the “Transferred Assets”):
(a) all tangible personal property of the Accounts ReceivableSeller solely used or usable in the Business (including, a recent summary schedule of without limitation, production/workover rigs, trucks, transport trailers and oil tools and equipment associated with the Business), which is attached hereto as more fully described on Schedule 2.1(a1.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets)hereto;
(b) the Equipment and Other Personalty whether located at the Transferred Facilities all of the Sellers inventory of the Seller solely used or elsewhereusable in the Business (including, without limitation, consumables and spare parts), which is more fully described on Schedule 1.1(b) hereto;
(c) all equipment warranties, if any, of the Intellectual Property primarily used in Seller relating to the Business, including, without limitation, the patented or registered Intellectual Property set forth on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual PropertyAssets;
(d) all Inventoryinformation, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred Assets);
(e) all rights of the Sellers under Assigned Contracts;
(f) originals or copies of all files, books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent computer data solely related to the Business maintenance of the Assets (collectively, the “Books and Records”);
(g) licenses and permits primarily used in the operation of the Business, to the extent transferable;
(h) subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned and leased Real Property primarily used in the operation of the Business, each parcel of which is set forth on Schedule 2.1(h);
(i) any warranties of third parties on any Transferred Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(me) all other assets primarily related to of the goodwill associated solely with the Business. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, other than any Excluded AssetsTHE ASSETS WILL BE TRANSFERRED “AS IS, WHERE IS,” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND IN THEIR PRESENT CONDITION AND STATE OF REPAIR, WITH ALL FAULTS, LIMITATIONS AND DEFECTS.
Appears in 1 contract
Purchase and Sale of the Assets. Except for Subject to the terms and conditions set forth in this Agreement, the Seller hereby agrees to sell, convey, transfer, assign and deliver to Buyer all of the assets of the Seller existing on the date hereof other than the Excluded Assets set forth (as defined in Section 2.2 below1.2, at and as of the Effective Timehereof), the Sellers shall Transfer to the Purchaser, and the Purchaser shall purchase and accept from the Sellers, free and clear of all Liens to the maximum extent provided in the Sale Approval Order, all of the Sellers’ right, title and interest in and to the following assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets);
(b) the Equipment and Other Personalty whether located at the Transferred Facilities of the Sellers tangible or elsewhere;
(c) the Intellectual Property primarily used in the Businessintangible, including, without limitation, the patented or registered Intellectual Property set forth on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual Property;
(d) all Inventory, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as following assets of the Closing Date that will be included in the Transferred Assets);
(e) all rights of the Sellers under Assigned Contracts;
(f) originals Seller relating to or copies of all books, financial and other records and information which has been reduced to written, recorded used or encoded form, in each case to the extent related to the Business (collectively, the “Books and Records”);
(g) licenses and permits primarily used useful in the operation of the Businessbusinesses as conducted by the Seller and those parties listed on Schedule 1.1 hereto (herein the "Affiliated Companies") on and before the date hereof (the "Businesses") (all such assets being sold hereunder are referred to collectively herein as the "Assets"):
(1) all tangible personal property of the Seller and all tangible personal property used in the Businesses (such as machinery, to equipment, leasehold improvements, furniture and fixtures, and vehicles), including, without limitation, that which is more fully described on Schedule 1.1(a) hereto (collectively, the extent transferable"Tangible Personal Property");
(h1) all of the Seller's inventory and all inventory used in the Businesses (collectively, the "Inventories"), subject to changes in the Purchaser’s right ordinary course of business since the Balance Sheet Date (as defined in Section 2.1.8 hereof);
(1) all of the Seller's intangible assets and all intangible assets used in the Businesses, including without limitation, (i) all of the Seller's rights to reject the names under which it is incorporated or under which it currently does business, (ii) all of the Seller's rights to any lease of Real Property its patents, patent applications, trademarks and service marks (including registrations and applications therefor), trade names, and copyrights and written know-how, trade secrets, licenses and sublicenses and all other similar proprietary data and the goodwill associated therewith (collectively, the "Intellectual Property") used or held in accordance connection with the terms Businesses (the "Seller Intellectual Property") and (iii) the Seller's phone numbers and all of this Agreementits sales and promotional literature, owned excluding account ledgers, books, records, files and leased Real Property primarily used in data, corporate minute books of the Seller and the Affiliated Companies, and all other records of the Seller and the Affiliated Companies (collectively, the "Intangibles"); "Intangibles");
(1) those leases, subleases, contracts, contract rights, and agreements relating to the Assets or the operation of the BusinessBusinesses, each parcel of which is set forth specifically listed on Schedule 2.1(h);
(i) any warranties of third parties on any Transferred Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to the Business, other than any Excluded Assets.1.1
Appears in 1 contract
Purchase and Sale of the Assets. Except for Subject to the Excluded Assets terms and conditions set forth in Section 2.2 belowthis Agreement, at the Seller hereby agrees to sell, convey, transfer, assign and deliver to Buyer effective as of 12:01 A.M. Texas time on the Effective Time, date of execution hereof (the Sellers shall Transfer to the Purchaser, and the Purchaser shall purchase and accept from the Sellers, free and clear of all Liens to the maximum extent provided in the Sale Approval Order"Closing Date"), all of the Sellers’ right, title and interest in and to assets of the following assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of Seller existing on the Closing Date that will be included in other than the Transferred AssetsExcluded Assets (defined below);
(b) the Equipment and Other Personalty , whether located at the Transferred Facilities of the Sellers real, personal, tangible or elsewhere;
(c) the Intellectual Property primarily used in the Businessintangible, including, without limitation, the patented following assets owned by the Seller relating to or registered Intellectual Property set forth used or useful in the operation of the business as conducted by the Seller on and before the date hereof (the "Business") (all such assets being sold hereunder are referred to collectively herein as the "Assets"):
(a) all tangible personal property owned by Seller (such as machinery, equipment, leasehold improvements, furniture and fixtures, and vehicles), including, without limitation, that which is more fully described on Schedule 2.1(c1.1(a) hereto (collectively, the "Tangible Personal Property");
(b) all of the inventory owned by Seller, including without limitation, that which is more fully described on Schedule 1.1(b) hereto (collectively, the "Inventory");
(c) all of the Seller's intangible assets (the "Intangibles"), including without limitation, (i) all of the Seller's rights to any patents, patent applications, trademarks and pending patent service marks (including registrations and applications or therefor), trade names, and copyrights and written know-how, trade secrets, licenses and sublicenses and all other applications for similar proprietary data and the registration of goodwill associated therewith (collectively, the "Intellectual Property") used or held in connection with the Business, (ii) the Seller's telephone numbers, and (iii) the sales and promotional literature, computer software, customer and supplier lists and all other records of the Seller relating to the Assets or the Business, excluding the corporate minute books, accounting records, files, tax returns and other financial data on whatever media, relating to the Seller or the Shareholder or the Excluded Assets (the "Retained Records");
(d) all Inventoryleases, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as subleases, contracts, contract rights, and agreements relating to the Assets or the operation of the Closing Date that will be included in Business, including, without limitation those listed on Schedule 1.1(d) hereto (collectively, the Transferred Assets"Contracts");
(e) all of the permits, authorizations, certificates, approvals, registrations, variances, waivers, exemptions, rights-of-way, franchises, ordinances, orders, licenses and other rights of the Sellers under Assigned Contracts;
(f) originals or copies of all books, financial every kind and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business character (collectively, the “Books and Records”);
(g"Permits") licenses and permits primarily used in relating principally to all or any of the Assets or to the operation of the Business, to including, but not limited to, those that are more fully described on Schedule 1.1(e) hereto;
(f) the extent transferable;goodwill and going concern value of the Business; and
(h) subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreementall other or additional privileges, owned rights, interests, properties and leased Real Property primarily used in the operation assets of the Business, each parcel of which is set forth on Schedule 2.1(h);
(i) any warranties of third parties on any Transferred Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosureand wherever located that are used in the Business or intended for use in the Business in connection with, confidentialityor that are necessary for the continued conduct of, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with the Business (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to the Business, other than any Excluded Assets).
Appears in 1 contract
Purchase and Sale of the Assets. Except for On the Excluded Assets set forth in Section 2.2 belowterms and subject to the conditions of this Agreement, at the Closing, Seller shall sell, assign, convey and as of the Effective Time, the Sellers shall Transfer transfer to the PurchaserBuyer, and the Purchaser Buyer shall purchase and accept acquire from the SellersSeller, free and clear of all any Liens to the maximum extent provided in the Sale Approval Order(other than Permitted Liens), all of Seller’s right, title and interest in, to and under all of the Sellersbusiness, properties, assets, goodwill and rights of Seller of whatever kind or nature, real or personal, tangible or intangible, owned, leased or licensed to Seller and used, held for use, or intended to be used in operating the Business in the Territory, wherever located and whether now existing or hereafter acquired, other than the Excluded Assets (collectively, the “Acquired Assets”), including the following:
(a) all of Seller’s or its Affiliates’ inventories used, held for use, or intended to be used in operating the Business, wherever located, including inventories of raw materials, finished goods, operating supplies, work-in-process, products, supplies, packaging, packaging materials, parts and other inventories used, held for use, or intended to be used in operating the Business, including any such being held on consignment, bailment or other arrangement (the “Purchased Inventory”);
(b) all tooling, dies and other supplies and equipment, wherever located, used or held for use in manufacturing, testing, storing or handling of the Business Products, including the items listed on Schedule 2.1(b);
(c) all supplier and customer lists and pricing information relating to the Business Products;
(d) other than the Excluded Contracts, all Contracts to which Seller or any of its Affiliates is a party to the extent related to the development, offer or sale of, or that are otherwise material to, Business Products in the Territory or any Transferred Employee, including those Contracts listed on Schedule 2.1(d) (the “Assumed Contracts”);
(e) all Business Intellectual Property Rights, including the Seller Marks and the other Intellectual Property set forth on Schedule 2.1(e), and the goodwill associated therewith;
(f) all Product Registrations of Regulatory Authorities related to the Business Product, including the new drug application approved by the FDA for the Business Product, all regulatory submissions in the United States that have been made with respect to the Business Product and all Health Canada regulatory submissions and, in each case all files, data and records related thereto;
(g) all Permits related to the Business Product in the Territory;
(h) the Assumed Clinical Trials and the Assumed Clinical Trial Authorizations and all files and records related thereto;
(i) all of Seller’s or its Affiliates’ claims, causes of action, defenses and rights of offset or counterclaim against third parties relating to any Acquired Asset or any Assumed Liability, including unliquidated rights under manufacturers’ or vendors’ warranties;
(j) all books and records relating to the Business, including all product designs and manufacturing drawings and all technical, sales and promotional literature used in the Territory, all correspondence with the FDA regarding IND and NDA for the Business Product, all clinical study data supporting the IND and NDA for the Business Product and all related historical safety and pharmacovigilance data;
(k) all insurance benefits to the extent relating to claims arising out of events that occurred prior to Closing (if any) and associated with the Acquired Assets, including such rights and proceeds receivable or hereafter received under any insurance policy written prior to the Closing;
(l) all right, title and interest in and to the following assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets)Business Product;
(b) the Equipment and Other Personalty whether located at the Transferred Facilities of the Sellers or elsewhere;
(c) the Intellectual Property primarily used in the Business, including, without limitation, the patented or registered Intellectual Property set forth on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual Property;
(d) all Inventory, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred Assets);
(e) all rights of the Sellers under Assigned Contracts;
(f) originals or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business (collectively, the “Books and Records”);
(g) licenses and permits primarily used in the operation of the Business, to the extent transferable;
(h) subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned and leased Real Property primarily used in the operation of the Business, each parcel of which is set forth on Schedule 2.1(h);
(i) any warranties of third parties on any Transferred Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to listed on Schedule 2.1(m); and
(n) all goodwill associated with the Business, other than any Excluded Business and the Acquired Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Navidea Biopharmaceuticals, Inc.)
Purchase and Sale of the Assets. Except for Subject to the Excluded Assets terms and conditions set forth in Section 2.2 belowherein, at the Closing, Seller shall sell, assign, transfer, convey and as of the Effective Time, the Sellers shall Transfer deliver to the PurchaserBuyer, and the Purchaser Buyer shall purchase and accept from the SellersSeller, free and clear of all Liens to the maximum extent provided in the Sale Approval OrderEncumbrances, with full title guarantee, all of the Sellers’ Seller’s right, title and interest in, to and under all of the 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, the Business (collectively, the “Purchased Assets”), including, without limitation, the following:
(a) those Online Marketplaces listed on Schedule 2.1(a) attached hereto;
(b) the Inventory listed on Schedule 2.1(b) (the “Purchased Inventory”);
(c) all Contracts set forth on Schedule 2.1(c), all Intellectual Property Agreements set forth in Schedule 5.14, and of Seller’s rights under all Open Purchase Orders (collectively, the “Assigned Contracts”);
(d) all Intellectual Property Assets;
(e) all of Seller’s rights under warranties, indemnities, and all similar rights against third parties to the extent related to any Purchased Assets;
(f) all Books and Records;
(g) all Permits with respect to the Business including all of the foregoing listed or described on Schedule 5.18, and the rights to all data and records held by the respective agencies or Governmental Authorities;
(h) all of Seller’s rights, title, and interest in and to the following assets (the “Transferred Assets”):
(a) the Amazon Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets)and all other Online Marketplaces;
(bi) all molds and other equipment used in the Equipment and Other Personalty whether located at development or manufacturing of Purchased Inventory to the Transferred Facilities of the Sellers or elsewhereextent owned by Seller;
(cj) all of Seller’s rights to receive, assert rights with respect to or otherwise benefit from any and all warranties, guaranties or other assurances made by third parties in connection with the Intellectual Property primarily used in Business;
(k) all prepaid items relating to the Business, including, without limitation, the patented or registered Intellectual Property set forth all deposits for Purchased Inventory on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual Property;
(d) all Inventory, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred Assets);
(e) all rights of the Sellers under Assigned Contracts;
(f) originals or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business (collectively, the “Books and Records”);
(g) licenses and permits primarily used in the operation of the Business, to the extent transferable;
(h) subject to the Purchaser’s right to reject any order; lease of Real Property in accordance with the terms of this Agreement, owned and leased Real Property primarily used in the operation of the Business, each parcel of which is set forth on Schedule 2.1(h);
(i) any warranties of third parties on any Transferred Assets;
(j) all prepaid expensesdeposits, security deposits deposits; Amazon carried balances and reserves, and all other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects)prepaid items;
(l) all rights and claims goodwill associated with or arising out of the Sellers of every kind Business and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees the going concern value of the Sellers Business. For the avoidance of doubt, the Purchased Assets do not include any asset, property, right, title or interest which is not used in the Business. To the extent any assets or property (including any Intellectual Property Assets) owned by an Affiliate of Seller are used in, held for use in, or reasonably necessary for the continued conduct of the Business (other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to the Business, other than any Excluded Assets), they shall be included within the defined term “Purchased Assets” for purposes hereof if they would have been so included had they been owned by Seller, and Seller shall cause such Affiliate, to convey such assets and property to Buyer free and clear of all Encumbrances for no additional consideration.
Appears in 1 contract
Purchase and Sale of the Assets. Except for Subject to the Excluded Assets terms and conditions set forth in Section 2.2 belowherein, at and as of the Effective TimeClosing (or at the applicable Conversion Date if otherwise expressly provided in this Section 2.01), the Sellers Company shall Transfer sell, convey, assign, transfer and deliver to the PurchaserBuyer, and the Purchaser Buyer shall purchase accept and accept from the Sellerspurchase, free and clear of all Liens to the maximum extent provided in the Sale Approval Orderany Liens, all of the Sellers’ Company’s right, title and interest in and to all of the following assets Company’s properties, assets, powers and rights of any type, kind or nature, whether tangible or intangible, and wherever located (other than the Retained Assets and collectively, the “Transferred Assets”):) used in connection with, arising out of, or otherwise related to the operation or conduct of the Company’s clearing and joint back office operations (collectively, the “Business”) including, without limitation, the following:
(a) the Accounts ReceivableClearing Agreements (for the purpose of clarity, a recent summary schedule of which it is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as PFSI has entered into Fully Disclosed Clearing Agreements and certain ancillary agreements in connection therewith with each of the Closing Date Introducing Brokers simultaneously herewith that will be included in become effective upon the Transferred Assetsapplicable Conversion Date for each Introducing Broker whereupon the existing Clearing Agreement between the Company and the applicable Introducing Broker will terminate);
(b) on the Equipment Conversion Date with respect to each individual Introducing Broker, all clearing deposits, cash, securities and Other Personalty whether located at other assets of such Introducing Broker held by the Transferred Facilities Company and all rights of the Sellers or elsewhereCompany for refunds and rights to offset in respect thereof arising after such Introducing Broker’s applicable Conversion Date;
(c) the Intellectual Property primarily used in the Business, including, without limitation, the patented or registered Intellectual Property set forth on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual PropertyIntentionally Omitted;
(d) all Inventory, a recent summary schedule of which is attached hereto as Material Contracts listed on Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred Assets2.01(d);
(e) (i) all rights of the Sellers under Assigned Contracts;
(f) originals data and Records generated or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business (collectively, the “Books and Records”);
(g) licenses and permits primarily used in connection with the operation of the Business, to including client and customer lists and Records, personnel records for the extent transferable;
Business Employees, (hii) subject to the Purchaser’s right to reject referral sources, research and development reports and Records, financial and accounting Records, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and any lease of Real Property in accordance with the terms of this Agreement, owned and leased Real Property primarily other documents generated or used in connection with the operation of the Business, each parcel of which is set forth Business and/or (iii) the Records listed on Schedule 2.1(h2.01(e);
(i) any warranties of third parties on any Transferred Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(mf) all other assets primarily related claims of the Company against third parties relating to the BusinessAssets, other than whether cxxxxx or inchoate, known or unknown, contingent or non-contingent, each as shall arise and shall be based upon actions or inactions occurring after the applicable Conversion Date, and all such claims listed in Schedule 2.01(f). Notwithstanding the above, the transfer of the Assets pursuant to this Agreement shall not include the assumption of any Excluded AssetsLiability unless Buyer expressly assumes that Liability hereunder.
Appears in 1 contract
Purchase and Sale of the Assets. Except for Subject to and upon the Excluded Assets terms and conditions set forth in Section 2.2 belowthis Agreement, at and as of the Effective TimeClosing Date, the Sellers shall Transfer Companies will sell, transfer, convey, assign and deliver to the Purchaser, and the Purchaser shall will purchase and accept or acquire from the Sellers, free and clear of all Liens to the maximum extent provided in the Sale Approval OrderCompanies, all of the Sellers’ right, title and interest of the Companies in and to the following assets of the Companies (collectively, the “Transferred "Assets”"):
(a) all of the Accounts Receivablerights of the Companies under the Acquired Contracts, a recent summary schedule of which is attached hereto as and all arrangements, licenses, leases and other agreements related thereto, including, without limitation, all contracts and deposit agreements with the financial institutions and property management groups listed on Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of 1.2(a), any right to receive payment for products sold or services rendered on and after the Closing Date that will be included pursuant to the Acquired Contracts and the other agreements described in the Transferred Assetsthis Section 1.2(a), and any right to assert claims and take other rightful actions in respect of breaches, defaults and other violations thereof;
(b) the Equipment specific items of hardware, software, furniture, fixtures, workstations, phones, licenses and Other Personalty whether located at the Transferred Facilities similar property of the Sellers or elsewhereBusiness set forth on Schedule 1.2(b) exclusive of associated liabilities unless expressly assumed;
(c) all rights in and to products sold or leased, and any inventory of the Intellectual Property primarily used Business in the BusinessElizabethtown, including, without limitation, the patented or registered Intellectual Property set forth on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual PropertyKentucky location;
(d) such rights (including but not limited to all Inventoryrelated intellectual property rights) in and to: (1) all proprietary or custom software (including all object and source code) and related documentation used by the Companies in the Business, including all upgrades and modifications thereto developed prior to the Closing Date; and (2) any products under research or development prior to the Closing Date (including all related intellectual property rights); and certain software and documentation, each as provided in a recent summary schedule of which is Software License Agreement to be entered into between Purchaser and the Companies (the "Software License Agreement"), in the form attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred AssetsExhibit 1.2(d);
(e) all intellectual property and all rights of the Sellers under Assigned Contracts;
(f) originals or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business (collectively, the “Books and Records”);
(g) licenses and permits primarily used in the operation of the Business, to the extent transferable;
(h) subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned and leased Real Property primarily used in the operation of the Business, each parcel of which is thereunder set forth on Schedule 2.1(h);
(i1.2(e) any warranties of third parties on any Transferred Assets;
(j) all prepaid expenses, security deposits and other credits owed or in respect thereof primarily relating to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities used or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets held for use in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature connection with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to the Business, other than any Excluded Assets.including, but not limited to, the business name and trademark "Call Me Bilx", all causes of action (whether known or unknown), rights to bring suit for and to recover and
Appears in 1 contract
Purchase and Sale of the Assets. Except for Subject to the terms and conditions set forth in this Agreement, at the Closing (as defined in Section 1.4 hereof), the Seller hereby agrees to sell, convey, transfer, assign and deliver to Buyer and Buyer agrees to purchase from the Seller all of the assets of the Seller existing on the Closing Date (as defined in Section 1.4 hereof) other than the Excluded Assets set forth (defined below), whether real, personal, tangible or intangible, including, without limitation, the following assets of the Seller relating to or used or useful in the operation of the business as conducted by the Seller on and before the Closing Date (the "Business") (all such assets being sold hereunder are referred to collectively herein as the "Assets"):
(a) all tangible personal property of the Seller (such as machinery, equipment, leasehold improvements, furniture and fixtures, and vehicles), including, without limitation, that which is more fully described on Schedule 1.1(a) hereto (collectively, the "Tangible Personal Property");
(b) all of the inventory of Seller, including without limitation, that which is more fully described on Schedule 1.1(b) hereto (collectively, the "Inventories"), subject to changes in the ordinary course of business since the Balance Sheet Date (as defined in Section 2.2 below, at and as 2.1.7 hereof);
(c) all of the Effective TimeSeller's intangible assets, including without limitation, (i) all of the Seller's rights to the names under which it is incorporated or under which it currently does business, (ii) all of the Seller's rights to any patents, patent applications, trademarks and service marks (including registrations and applications therefor), trade names, and copyrights and written know-how, trade secrets, licenses and sublicenses and all other similar proprietary data and the goodwill associated therewith (collectively, the Sellers shall Transfer "Intellectual Property") used or C:\34ACTREP\EXFILES\EXHIBIT.2G 1 held in connection with the Business, including without limitation, that which is more fully described on Schedule 1.1(c) hereto (the "Seller Intellectual Property") and (iii) all of the Seller's rights in its phone numbers and all of its account ledgers, sales and promotional literature, computer software, books, records, files and data (including customer and supplier lists), and all other records of the Seller relating to the PurchaserAssets or the Business, excluding the corporate minute books of the Seller (collectively, the "Intangibles");
(d) those leases, subleases, contracts, contract rights, and the Purchaser shall purchase and accept from the Sellers, free and clear of all Liens agreements relating to the maximum Assets or the operation of the Business specifically listed on Schedule 1.1(d) hereto (collectively, the "Contracts");
(e) to the extent provided in the Sale Approval Orderassignable, all of the Sellers’ permits, authorizations, certificates, approvals, registrations, variances, waivers, exemptions, rights-of-way, franchises, ordinances, orders, licenses and other rights of every kind and character (collectively, the "Permits") relating principally to all or any of the Assets or to the operation of the Business, including, but not limited to, that which is more fully described on Schedule 1.1(e) hereto (collectively, the "Seller Permits");
(f) the goodwill of the Business; and
(g) all other or additional privileges, rights, interests, properties and assets of the Seller of every kind and description and wherever located that are used in the Business, intended for use in the Business, or necessary for the continued conduct of the Business other than the Excluded Assets.
(i) all of the Seller's accounts receivable and all other rights of the Seller to payment for services rendered by the Seller before the Closing Date (the "Seller Receivables"); (ii) all cash accounts, cash equivalents or similar investments of the Seller and all petty cash of the Seller kept on hxxx xor use in the Business; (iii) all right, title and interest of the Seller in and to all prepaid rentals, other prepaid expenses, prepaid taxes, bonds, deposits and financial assurance requirements, and other current assets relating to any of the Assets or the Business; (iv) all assets in possession of the Seller but owned by third parties; (v) the corporate charter, corporate seal, organizational documents and minute books of the Seller and all records necessary for the preparation of returns and other reports by the Seller, the Shareholder and their affiliates; (vi) the cash consideration paid or payable by Buyer to Seller pursuant to Section 1.2 hereof; (vii) all Seller Permits specified as not assignable in Schedule 1.1(e) hereto; and (viii) the Seller's right, title and interest in and to the following assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets);
(b) the Equipment and Other Personalty whether located at the Transferred Facilities of the Sellers or elsewhere;
(c) the Intellectual Property primarily used in the Business, including, without limitation, the patented or registered Intellectual Property set forth on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual Property;
(d) all Inventory, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred Assets);
(e) all rights of the Sellers under Assigned Contracts;
(f) originals or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business (collectively, the “Books and Records”);
(g) licenses and permits primarily used in the operation of the Business, to the extent transferable;
(h) subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned and leased Real Property primarily used in the operation of the Business, each parcel of which is set forth on Schedule 2.1(h);
(i) any warranties of third parties on any Transferred Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to the Business, other than any Excluded Assets.
Appears in 1 contract
Purchase and Sale of the Assets. Except for Subject to the terms and conditions set forth in this Agreement, the Seller hereby agrees to sell, convey, transfer, assign and deliver to Buyer all of the assets of the Seller existing on the date hereof other than the Excluded Assets set forth (as defined in Section 2.2 below1.2, at and as of the Effective Timehereof), the Sellers shall Transfer to the Purchaser, and the Purchaser shall purchase and accept from the Sellers, free and clear of all Liens to the maximum extent provided in the Sale Approval Order, all of the Sellers’ right, title and interest in and to the following assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets);
(b) the Equipment and Other Personalty whether located at the Transferred Facilities of the Sellers tangible or elsewhere;
(c) the Intellectual Property primarily used in the Businessintangible, including, without limitation, the patented or registered Intellectual Property set forth on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual Property;
(d) all Inventory, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as following assets of the Closing Date that will be included in the Transferred Assets);
(e) all rights of the Sellers under Assigned Contracts;
(f) originals Seller relating to or copies of all books, financial and other records and information which has been reduced to written, recorded used or encoded form, in each case to the extent related to the Business (collectively, the “Books and Records”);
(g) licenses and permits primarily used useful in the operation of the Business, businesses as conducted by the Seller on and before the date hereof (the "Businesses") (all such assets being sold hereunder are referred to collectively herein as the extent transferable;"Assets"):
(h1) subject to all tangible personal property of the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned Seller and leased Real Property primarily all tangible personal property used in the operation of the BusinessBusinesses (such as machinery, each parcel of equipment, leasehold improvements, furniture and fixtures, and vehicles), including, without limitation, that which is set forth more fully described on Schedule 2.1(h1.1(a) hereto (collectively, the "Tangible Personal Property");
(i) any warranties of third parties on any Transferred Assets;
(j1) all prepaid expensesof the Seller's inventory and all inventory used in the Businesses, security deposits and other credits owed including without limitation, that which is more fully described on Schedule 1.1(b) hereto (collectively, the "Inventories"), subject to changes in the Sellers from third parties, to ordinary course of business since the extent primarily related to the Transferred Assets;
Balance Sheet Date (k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets as defined in all respectsSection 2.1.8 hereof);
(l1) the goodwill and going concern value of the Businesses; and
(1) all rights other or additional privileges, rights, interests, properties and claims assets of the Sellers of every kind and description under all non-disclosureand wherever located that are used in the Businesses or intended for use in the Businesses in connection with, confidentialityor that are necessary for the continued conduct of, non-competitionthe Businesses; intended for use in the Businesses in connection with, non-solicitationor that are necessary for the continued conduct of, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who Businesses;that are hired by necessary for the Purchaser to continued conduct of, the extent such agreements relate to Businesses; intended for use in the Transferred Assets and (ii) all Eligible Employees who Businesses in connection with, or that are hired by necessary for the Purchaser whether continued conduct of, the Businesses;continued conduct of, the Businesses;that are necessary for the continued conduct of, the Businesses; intended for use in the Businesses in connection with, or not such agreements relate to that are necessary for the Transferred Assets; and
(m) all other assets primarily related to continued conduct of, the Business, other than any Excluded Assets.Busin
Appears in 1 contract
Purchase and Sale of the Assets. Except for Subject to the Excluded Assets terms and conditions set forth in Section 2.2 belowthis Agreement, at the Seller hereby agrees to sell, convey, transfer, assign and deliver to Buyer effective as of 12:01 A.M. Texas time on the Effective Time, date of execution hereof (the Sellers shall Transfer to the Purchaser, and the Purchaser shall purchase and accept from the Sellers, free and clear of all Liens to the maximum extent provided in the Sale Approval Order"Closing Date"), all of the Sellers’ right, title and interest in and to assets of the following assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of Seller existing on the Closing Date that will be included in other than the Transferred AssetsExcluded Assets (defined below);
(b) the Equipment and Other Personalty , whether located at the Transferred Facilities of the Sellers real, personal, tangible or elsewhere;
(c) the Intellectual Property primarily used in the Businessintangible, including, without limitation, the patented following assets owned by the Seller relating to or registered Intellectual Property set forth used or useful in the operation of the business as conducted by the Seller on and before the date hereof (the "Business") (all such assets being sold hereunder are referred to collectively herein as the "Assets"):
(a) all tangible personal property owned by Seller (such as machinery, equipment, leasehold improvements, furniture and fixtures, and vehicles), including, without limitation, that which is more fully described on Schedule 2.1(c1.1(a) hereto (collectively, the "Tangible Personal Property");
(b) all of the inventory owned by Seller, including without limitation, that which is more fully described on Schedule 1.1(b) hereto (collectively, the "Inventory");
(c) all of the Seller's intangible assets (the "Intangibles"), including without limitation, (i) all of the Seller's rights to the names under which it is incorporated or under which they currently do business, (ii) all of the Seller's rights to any patents, patent applications, trademarks and pending patent service marks (including registrations and applications or therefor), trade names, and copyrights and written know-how, trade secrets, licenses and sublicenses and all other applications for similar proprietary data and the registration of goodwill associated therewith (collectively, the "Intellectual Property") used or held in connection with the Business, including without limitation, that which is more fully described on Schedule 1.1(c) hereto, (iii) the Selle's telephone numbers, and (iv) the sales and promotional literature, computer software, customer and supplier lists and all other records of the Seller relating to the Assets or the Business, excluding the corporate minute books, accounting records, files, tax returns and other financial data on whatever media, relating to the Seller or the Shareholders or the Excluded Assets (the"Retained Records");
(d) all Inventoryleases, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as subleases, contracts, contract rights, and agreements relating to the Assets or the operation of the Closing Date that will be included in Business, including, without limitation those listed on Schedule 1.1(d) hereto (collectively, the Transferred Assets"Contracts");
(e) all of the permits, authorizations, certificates, approvals, registrations, variances, waivers, exemptions, rights-of-way, franchises, ordinances, orders, licenses and other rights of the Sellers under Assigned Contracts;
(f) originals or copies of all books, financial every kind and other records and information which has been reduced to written, recorded or encoded form, in each case to the extent related to the Business character (collectively, the “Books and Records”);
(g"Permits") licenses and permits primarily used in relating principally to all or any of the Assets or to the operation of the Business, to the extent transferableincluding, but not limited to, those that are more fully described on Schedule 1.1(e) hereto;
(hf) subject to the Purchaser’s right to reject any lease of Real Property in accordance with the terms of this Agreement, owned goodwill and leased Real Property primarily used in the operation going concern value of the Business, each parcel of which is set forth on Schedule 2.1(h);; and
(i) any warranties of third parties on any Transferred Assets;
(jg) all prepaid expensesother or additional privileges, security deposits rights, interests, properties and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects);
(l) all rights and claims assets of the Sellers Seller of every kind and description under all non-disclosureand wherever located that are used in the Business or intended for use in the Business in connection with, confidentialityor that are necessary for the continued conduct of, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to the Business, other than any Excluded Assets.
Appears in 1 contract
Purchase and Sale of the Assets. (a) Except for the Excluded Assets set forth (as defined in Section 2.2 1.1(b) below), upon the terms and subject to the conditions of this Agreement, at and as of the Effective TimeClosing, the Sellers Buyer shall Transfer to purchase from the PurchaserSeller, and the Purchaser Seller shall purchase sell, convey, transfer, assign and accept from deliver to the SellersBuyer, all right, title and interest of the Seller in and to all of the Assets, free and clear of all Liens Encumbrances (other than Permitted Encumbrances). The foregoing transaction, together with the assumption of the Assumed Liabilities pursuant to Section 1.2(a), is hereinafter referred to as the “Asset Sale.” Subject to Section 1.1(b), the term “Assets” shall include the following:
(i) The Tangible Personal Property owned, used or held for use by the Seller primarily in the Business (the “Transferred Tangible Personal Property”);
(ii) All Accounts Receivable owed to the maximum Seller, subject to Section 1.1(b)(ii) and Section 5.4;
(iii) All Transferred Inventory, including the Inventory identified on Schedule 1.1(a)(iii);
(iv) To the extent provided transferable, all Permits and Governmental Permits held by the Seller that are used primarily in the Sale Approval OrderBusiness;
(v) Each of the Contracts relating primarily to the Business, including the Contracts set forth on Schedule 3.14 to which the Seller is a party (the “Assigned Contracts”) and the Seller’s right to all security deposits, prepaid expenses and other amounts, instruments and similar items related thereto;
(vi) To the extent transferable, each of the (A) Government Contracts to which the Seller is a party (the “Assigned Government Contracts”), and (B) Government Bids to which the Seller is a party, including in the cases of clauses (A) and (B), those required to be listed on Schedule 3.22(a);
(vii) All currently used and readily available sales support and promotional materials, advertising materials, and sales and marketing files of the Seller and related primarily to the Business;
(viii) All current customer lists, supplier lists, production records and available credit records, or similar records of all sales, and all other papers, books and records, to the extent used or held for use by the Seller primarily in connection with the Business, to the extent that such records may be transferred in accordance with Requirements of Law;
(ix) All Transferred Intellectual Property, including all of the Sellers’ Seller’s right, title and interest in and to the following assets (the “Transferred Assets”):
(a) the Accounts Receivable, a recent summary schedule of which is attached hereto as Schedule 2.1(a) (it being understood that such schedule does not reflect Accounts Receivable as of the Closing Date that will be included in the Transferred Assets);
(b) the Equipment and Other Personalty whether located at the Transferred Facilities of the Sellers or elsewhere;
(c) the Intellectual Property primarily used in the Business, including, without limitation, the patented or registered all Intellectual Property set forth on Schedule 2.1(c) and pending patent applications or other applications for the registration of Intellectual Property;
(d) all Inventory, a recent summary schedule of which is attached hereto as Schedule 2.1(d) (it being understood that such schedule does not reflect Inventory as of the Closing Date that will be included in the Transferred Assets1.1(a)(ix);
(ex) All of the Seller’s rights, claims, credits, causes of action or rights of set-off against third parties to the extent relating primarily to the Business or the Assets, and claims pursuant to all warranties, representations and guarantees made by suppliers, manufacturers, contractors and other third parties in connection with products or services purchased by or furnished to the Seller for use primarily in the Business or primarily affecting any of the Assets, but not, in any event, any claims under the Seller’s insurance policies (except to the extent otherwise provided in Section 6.3) or any other Contracts not included in the Assets;
(xi) All goodwill of the Business;
(xii) All rights of the Sellers Seller under Assigned Contracts;each of the Leases required to be set forth on Schedule 3.10(e) to which the Seller is a party (the “Transferred Leases”); and
(fxiii) originals or copies of all books, financial and other records and information which has been reduced to written, recorded or encoded form, in each case Each bank account set forth on Schedule 3.26.
(b) Notwithstanding anything to the extent related to contrary herein, the Assets do not include (1) all Government Property, (2) the rights, properties and assets (tangible and intangible, and wherever located) which are not used or held for use by the Seller primarily in connection with the Business nor identified in Section 1.1(a) or on Schedule 1.1(a), (3) all Intellectual Property (including the Licensed Intellectual Property) that is not Transferred Intellectual Property or Company Intellectual Property, (4) the PWPG Shares, the RD-180 Assets and the RD-180 Excluded Assets and (5) the following properties, assets and rights (the assets described in clauses (1) through (5) collectively, the “Books Excluded Assets”):
(i) All cash, cash equivalents, bank and Recordsother depository accounts and safe deposit boxes, demand accounts, certificates of deposit, time deposits, negotiable instruments and securities of or held by the Seller (other than as provided in Section 1.1(a)(v) or Section 1.1(a)(xiii));
(ii) All Accounts Receivable, if any, owed from any Company to the Seller;
(iii) All corporate or organizational records and minute books of the Seller;
(iv) All refunds, rebates and credits of Taxes, Tax losses, loss and credit carryforwards, and other Tax attributes of the Seller relating to any period or portion thereof (and any such refunds received by the Buyer shall be promptly paid over by the Buyer to the Seller);
(v) All Tangible Personal Property that is not used or held for use primarily in the Business, including any such Tangible Personal Property identified on Schedule 1.1(b)(v);
(vi) All Inventory of the Seller, other than Transferred Inventory and the Inventory identified on Schedule 1.1(a)(iii);
(vii) Permits and Governmental Permits that are non-transferable or are set forth on Schedule 1.1(b)(vii) (the “Excluded Seller Permits”);
(gviii) licenses and permits primarily used in the operation of All insurance policies relating to the Business, any refunds paid or payable in connection with the cancellation or discontinuance of any insurance policies applicable to the extent transferableBusiness, and, except as provided in Sections 6.3(d) and 6.3(f), any claims made on any such insurance policies for all periods before, through and after the Closing Date;
(hix) subject All rights of the Seller under this Agreement or any Ancillary Agreement (including rights to the Purchaser’s right to reject Purchase Price and Final Purchase Price hereunder) or any lease of Real Property agreement, certificate, instrument or other document executed and delivered by the Seller or the Buyer in accordance connection with the terms transactions contemplated hereby, or any side agreement between the Seller and the Buyer entered into on or after the Original Agreement Date;
(x) All real property owned by the Seller as of this Agreementthe Closing Date, owned including the PWRWB Facility, the Canoga Park Facility and leased Real Property primarily used the Seller’s interest in the operation Excluded Portion of the BusinessDeSoto Facility, each parcel of as well as all real property leases/subleases or license agreements to which Seller is a party other than the Transferred Leases;
(xi) Assets maintained pursuant to or in connection with the Excluded Liabilities set forth on Schedule 2.1(hin Section 1.2(b)(iv);
(ixii) any warranties of third parties on any Transferred Assets relating to United Technologies Research Center set forth in Schedule 1.1(b)(xiii) (the “Excluded UTRC Assets;
(j) all prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent primarily related to the Transferred Assets;
(k) all rights and incidents under policies, contracts or arrangements related to insurance of any Seller to the extent related to Assumed Liabilities or Transferred Assets and to the extent transferable (it being understood that (i) such policies will be cancelled at Closing and the Sellers will be entitled to any refunds upon such cancellation and (ii) the Sellers’ directors and officers insurance policies will constitute Excluded Assets in all respects”);
(lxiii) all rights and claims of the Sellers of every kind and description under all non-disclosure, confidentiality, non-competition, non-solicitation, assignment of invention and other agreements of a comparable nature with (i) all present and former employees of the Sellers other than Eligible Employees who are hired by the Purchaser All assets related to the extent such agreements relate to the Transferred Assets and (ii) all Eligible Employees who CSD Business that are hired by the Purchaser whether or not such agreements relate to the Transferred Assets; and
(m) all other assets primarily related to the Business, other than any Excluded Assets; and
(xiv) The assets listed on Schedule 1.1(b)(xiv).
Appears in 1 contract
