Purchase and Sale of Transferred Assets. Subject to the terms and conditions of this Agreement, at the Closing (as defined below) Seller shall sell, transfer, convey, assign and deliver to Buyer, and Buyer shall purchase, accept and acquire from Seller, free and clear of any Liens, all assets constituting the Seller’s Business, including without limitation, the following properties, assets, rights and claims, whether tangible or intangible, but excluding the Excluded Assets (the “Transferred Assets”): (a) all of the Seller’s IP, including without limitation the Seller’s IP identified on Schedule 2.1(a); (b) the Equipment, including without limitation the assets identified on Schedule 2.1(b); (c) the Contracts identified on Schedule 2.1(c) (the “Transferred Contracts”) except that Transferred Contracts shall not include any Contract which a Required Consent is necessary and not obtained by Closing save as otherwise provided under Section 5.12; (d) the Employee Assets which are listed as Schedule 2.1(d) (as it may be adjusted at Closing; (e) all websites, internet domain names, URLs and webpages used or held for use in connection with the Seller’s Business, including without limitation, wxx.xxxxxxxxx.xxx and the other domain names identified on Schedule 2.1(e), together with all Intellectual Property associated therewith other than trademarks set forth therein which are not otherwise part of the Transferred Assets; (f) all advertising, marketing and sales materials developed for, or used in connection with, the Seller's Business together with all Intellectual Property embodied therein other than trademarks set forth therein which are not otherwise part of the Transferred Assets; (g) all files, invoices, customer lists, records pertaining to customers and end-users (present, past and potential), all supplier lists and records pertaining to suppliers, books of account, files and ledgers, and other records to the extent solely and specifically for the Transferred Assets or the Assumed Liabilities and copies of the Tax books and records (redacted to exclude information not relating to the Transferred Assets or the Assumed Liabilities) relating to the Transferred Assets of the Assumed Liabilities and not otherwise provided pursuant to this clause (g), which shall also be made reasonably available to the Buyer prior to closing to inspect and make copies of, upon reasonable notice to Seller (collectively the “Business Records”); (h) the Receivables; and (i) all goodwill of the Seller’s Business.
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Purchase and Sale of Transferred Assets. Subject to the terms and conditions of this Agreement, at the Closing (as defined below) Seller Sellers shall sell, transfer, convey, assign and deliver to Buyer, and Buyer shall purchase, accept and acquire from SellerSellers, free and clear of any Liens, all assets constituting the Seller’s Watchpoints Business, including without limitation, the following properties, assets, rights and claims, whether tangible or intangible, but excluding the Excluded Assets (the “Transferred Assets”):
(a) all of the Seller’s Watchpoints IP, including without limitation the Seller’s Watchpoints IP identified on Schedule 2.1(a);
(b) the EquipmentEquipment and Equipment Embodiments and Documentation, including without limitation the assets identified on Schedule 2.1(b);
(c) the Contracts identified on Schedule 2.1(c) (the “Transferred Contracts”) except that Transferred Contracts shall not include any Contract if Buyer elects on or after the Closing not to accept a Contract for which a Required Consent is necessary and not obtained by Closing save or which Buyer is still reviewing as otherwise provided under Section 5.12identified on Schedule 2.1(c);
(d) the Employee Assets which are listed as Schedule 2.1(d) (as it may be adjusted at Closing to reflect the Designated Employees who have accepted employment offers, if any, from Buyer as of the Closing);
(e) all websites, internet domain names, URLs and webpages used or held for use in connection with the Seller’s Watchpoints Business, including without limitation, wxx.xxxxxxxxx.xxx xxx.xxxxxxxxxxx.xxx, “xxx.xxxxxxxxxxx.xx” and the other domain names identified on Schedule 2.1(e), together with all Intellectual Property associated therewith other than trademarks set forth therein which are not otherwise part of the Transferred Assets;
(f) all advertising, marketing and sales materials developed for, or used in connection with, the Seller's Watchpoints Business together with all Intellectual Property embodied therein other than trademarks set forth therein which are not otherwise part of the Transferred Assets;
(g) all files, invoices, customer lists, records pertaining to customers and end-users (present, past and potential), all supplier lists and records pertaining to suppliers, books of account, files and ledgers, and other records to the extent solely and specifically for the Transferred Assets or the Assumed Liabilities and copies of the Tax books and records (redacted to exclude information not relating to the Transferred Assets or the Assumed Liabilities) relating to the Transferred Assets of the Assumed Liabilities and not otherwise provided pursuant to this clause (g), which shall also be made reasonably available to the Buyer prior to closing to inspect and make copies of, upon reasonable notice to Seller (collectively the “Business Records”);
(h) without limiting the Receivablesforegoing, electronic media including complete and accurate copies of all Intellectual Property Embodiments and Documentation; and
(i) all goodwill of the Seller’s Watchpoints Business.
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Purchase and Sale of Transferred Assets. Subject to the terms and conditions of this Agreement, at the Closing (as defined below) Seller shall sell, transfer, convey, convey and assign and deliver to BuyerPurchaser, and Buyer Purchaser shall purchase, accept all right, title and acquire from Seller, free interest of Seller in and clear of any Liens, all to the assets constituting the Seller’s Business, including without limitation, described in the following properties, assets, rights and claims, whether tangible or intangible, but excluding clauses (a) through (e) (all of which are hereinafter collectively referred to as the Excluded Assets (the “Transferred Assets”"TRANSFERRED ASSETS"):
(a) all those two (2) parcels of real estate located at the Seller’s IP, including without limitation the Seller’s IP identified addresses listed on Schedule 2.1(a1.1
(a) 1 attached hereto and legally described on Schedule 1.1
(a) 2 hereto, together with (i) all easements, covenants, agreements, rights, privileges, tenements, hereditaments and appurtenances belonging or appertaining thereto, (ii) all oil, gas and mineral rights relating to the real estate, and any rights to use and appropriate water from or relating to the real estate, and (iii) any land lying in the bed of any street, alley, road or avenue (whether open, closed or proposed) within, in front of, behind or otherwise adjoining any such parcel of real estate or any portion of it (individually, an "OWNED PROPERTY" and collectively, the "OWNED PROPERTIES");
(b) the Equipmentthose fifty-two (52) lease agreements, including without limitation the assets together with all modifications and amendments thereto and assignments thereof, identified on Schedule 2.1(b1.1
(b) 1 attached hereto, together with all easements, covenants, agreements, rights, privileges, tenements, hereditaments and appurtenances belonging or appertaining thereto (collectively, the "LEASES"), pursuant to which Seller leases certain real properties identified on Schedule 1.1(b)-2 attached hereto (individually, a "LEASED PROPERTY" and collectively, the "LEASED PROPERTIES");
(c) the Contracts identified on Schedule 2.1(c) buildings, structures, fixtures, facilities, installations and other improvements now or hereafter in, on, or under the Owned Properties and the Leased Properties, including, without limitation, any plumbing, air conditioning, heating, ventilating, mechanical, electrical, sprinklers and other utility systems, vertical transportation systems, loading docks, parking lots and facilities, landscaping, roadways, sidewalks, signs, security devices and fixtures that are attached to the Owned Properties or Leased Properties (collectively, the “Transferred Contracts”) except that Transferred Contracts shall not include any Contract which a Required Consent is necessary and not obtained by Closing save as otherwise provided under Section 5.12"IMPROVEMENTS");
(di) all existing surveys, blueprints, drawings, plans and specifications (including, without limitation, structural, HVAC, mechanical, electrical, vertical transportation and plumbing plans and specifications) relating to the Employee Assets which are listed as Schedule 2.1(d) Properties (as it may be adjusted at Closing;hereinafter defined) to the extent in Seller's possession or control; (ii) all currently effective use, occupancy, building and operating permits, licenses and approvals relating to the Properties, to the extent assignable or transferable; and (iii) all currently effective guarantees and warranties issued to Seller in connection with the purchase, construction, alteration, installation or repair of any portion of the Properties, to the extent assignable or transferable (collectively, the "INTANGIBLE PERSONAL PROPERTY"); and
(e) all websitesracks, internet domain namesshelves, URLs brackets, displays and webpages used or held for use other merchandise trade fixtures located in connection with the Seller’s BusinessProperties as of the Effective Date (collectively, including without limitation, wxx.xxxxxxxxx.xxx and the other domain names identified on Schedule 2.1(e)"MERCHANDISE TRADE FIXTURES," and, together with all Intellectual Property associated therewith other than trademarks set forth therein which are not otherwise part of the Transferred Assets;
(f) all advertising, marketing and sales materials developed for, or used in connection withIntangible Personal Property, the Seller's Business "PERSONAL PROPERTY"). For purposes of this Agreement, each Owned Property and Leased Property, together with all Intellectual Property embodied therein other than trademarks set forth therein which are not otherwise part of related Improvements, is referred to individually as a "PROPERTY," and collectively as the Transferred Assets;
(g) all files, invoices, customer lists, records pertaining to customers and end-users (present, past and potential), all supplier lists and records pertaining to suppliers, books of account, files and ledgers, and other records to the extent solely and specifically for the Transferred Assets or the Assumed Liabilities and copies of the Tax books and records (redacted to exclude information not relating to the Transferred Assets or the Assumed Liabilities) relating to the Transferred Assets of the Assumed Liabilities and not otherwise provided pursuant to this clause (g), which shall also be made reasonably available to the Buyer prior to closing to inspect and make copies of, upon reasonable notice to Seller (collectively the “Business Records”);
(h) the Receivables; and
(i) all goodwill of the Seller’s Business"PROPERTIES."
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Purchase and Sale of Transferred Assets. Subject to Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing (as defined below) Closing, Seller shall sell, convey, transfer, convey, assign and deliver to Buyer, and Buyer shall purchase, accept assume and acquire receive from Seller, all of Seller’s right, title and interest in and to the following assets and properties of Seller (other than the Excluded Assets) in each case, to the extent such assets and properties exist as of the Closing Date (such assets and properties are collectively referred to herein as the “Transferred Assets”), free and clear of any Liens, all assets constituting other than Permitted Liens to the Seller’s Business, including without limitation, the following properties, assets, rights and claims, whether tangible or intangible, but excluding the Excluded Assets (the “Transferred Assets”):extent such Permitted Liens are Assumed Liabilities:
(a) all trade accounts receivable of the Seller’s IPBusiness as of the Closing Date, including without limitation the Seller’s IP identified those listed on Schedule 2.1(a), excluding any intercompany accounts receivable;
(b) all inventory of the EquipmentBusiness, wherever located, and all raw materials, work-in-process, finished products, shipments in transit, wrapping, supply and packaging items used or held for use in the Business, including without limitation the assets identified those listed on Schedule 2.1(b);
(c) all machinery, tooling, molds, equipment and other tangible personal property used or held for use in the Contracts identified operation of the Business, including those listed on Schedule 2.1(c), except for any inventory or property which is real property;
(d) the Business Intellectual Property Rights, including the rights set forth on Schedule 3.10(a), but excluding the Parent Intellectual Property;
(e) all Contracts or other arrangements to which Seller is a party or which relate to the Business, including those listed on Schedule 2.1(e) (the “Transferred Contracts”) except that Transferred Contracts shall not include any Contract which a Required Consent is necessary and not obtained by Closing save as otherwise provided under Section 5.12);
(df) all goodwill of the Employee Assets which are listed as Schedule 2.1(d) (as it may be adjusted at ClosingBusiness;
(eg) all websitesadvertising materials, internet domain namesmarketing plans, URLs distribution programs, customer lists and webpages other similar information used or held for use in connection with the Seller’s Business, including without limitation, wxx.xxxxxxxxx.xxx and the other domain names identified on except as provided in Schedule 2.1(e), together with all Intellectual Property associated therewith other than trademarks set forth therein which are not otherwise part of the Transferred Assets;
(f) all advertising, marketing and sales materials developed for, or used in connection with, the Seller's Business together with all Intellectual Property embodied therein other than trademarks set forth therein which are not otherwise part of the Transferred Assets;
(g) all files, invoices, customer lists, records pertaining to customers and end-users (present, past and potential), all supplier lists and records pertaining to suppliers, books of account, files and ledgers, and other records to the extent solely and specifically for the Transferred Assets or the Assumed Liabilities and copies of the Tax books and records (redacted to exclude information not relating to the Transferred Assets or the Assumed Liabilities) relating to the Transferred Assets of the Assumed Liabilities and not otherwise provided pursuant to this clause (g), which shall also be made reasonably available to the Buyer prior to closing to inspect and make copies of, upon reasonable notice to Seller (collectively the “Business Records”2.1(g);
(h) all Governmental Authorizations issued to Seller with respect to the Receivables; andBusiness and all pending applications relating to the foregoing, in each case to the extent their transfer is permitted by applicable Law and otherwise transferrable to Buyer including those listed on Schedule 2.1(h);
(i) all goodwill causes of action, lawsuits, judgments, claims and demands of any nature that arose or arise or relate to events that occurred prior to the date hereof or that occur prior to, at or after the Closing if the same arose or arise, as the case may be, out of or related to the Business, any of the Transferred Assets or Assumed Liabilities, whether arising by way of counterclaim or otherwise;
(j) all prepaid expenses, advances, deposits, and similar items of Seller’s , which relate to the Business, including those listed on Schedule 2.1(j), other than those set forth in Section 2.2(b), Section 2.2(l) and Section 2.2 (m);
(k) all Books and Records of Seller relating to the Business, except as provided in Section 2.2(j);
(l) all warranties and claims in respect of the Business or the Transferred Assets (and any insurance or other proceeds received in respect thereof);
(m) all confidentiality agreements pursuant to which any third party has agreed not to disclose any confidential or proprietary information of the Seller or the Business; and
(n) all other business, properties, assets, goodwill and rights of the Seller of whatever kind and nature, real or personal, tangible or intangible, other than Excluded Assets, owned, leased, licensed, used or held for use in the operation of the Business. Notwithstanding anything to the contrary contained in this Agreement but subject to Section 5.4, Seller may retain copies of any Contracts, Books and Records or any other documents or materials transferred to Buyer as part of the Transferred Assets.
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Purchase and Sale of Transferred Assets. Subject to the terms and conditions of this Agreement, at the Closing (as defined below) Seller shall sell, transfer, convey, assign and deliver to Buyer, and Buyer shall purchase, accept and acquire from Seller, free and clear of any Liens, all assets constituting assets, other than the Excluded Assets, owned by Seller’s Business, including without limitation, the following properties, assets, rights and claims, whether tangible or intangible, but excluding the Excluded Assets intangible (the “Transferred Assets”):
(a) all of the Seller IP owned by Seller’s IP, including without limitation the Seller’s Seller IP identified on Schedule 2.1(a);
(b) the EquipmentEquipment and Equipment Embodiments and Documentation, including without limitation the assets identified on Schedule 2.1(b);
(c) the Contracts identified on Schedule 2.1(c) (the “Transferred Contracts”) except that Transferred Contracts shall not include any Contract which a Required Consent is necessary and not obtained by Closing save as otherwise provided under Section 5.12non-exclusive software licenses for software included on the Equipment, to the extent they are transferable without consent;
(d) the Employee Assets which are listed as Schedule 2.1(d) (as it may be adjusted at Closing to reflect the Designated Employees who have accepted employment offers from Buyer as of the Closing);
(e) all websites, websites internet domain names, URLs and webpages webpages, and social media or networking pages or accounts, registered or controlled by Seller and used or held for use in connection with the Seller’s BusinessBusiness (including any Facebook page/account, Twitter handle/account, or other similar assets), including without limitation, wxx.xxxxxxxxx.xxx xxx.xxxxxxxx.xxx, and the other domain names identified on Schedule 2.1(e), together with all Intellectual Property associated therewith other than trademarks set forth therein which are not otherwise part of the Transferred AssetsAsset, and in each case, solely to the extent they are transferable without violating the respective agreements, terms or conditions;
(f) accounts receivable as of the Closing Date and other rights to receive payment from any Person other than Function(x) and the right to receive $91,667.00 pursuant to Seller’s November 30, 2011 invoice relating to that certain Subscription Services and License Agreement, made as of September, 2011, by and between Seller and Yahoo!7 Pty Limited, an Australian corporation, and any proceeds therefrom;
(g) all advertising, marketing and sales materials developed for, or used in connection with, the Seller's Business together owned by Seller along with all Intellectual Property embodied therein associated therewith owned by Seller, other than trademarks set forth therein which are not otherwise part of the Transferred Assets;
(gh) all filescustomer, invoicesend user, customer lists, records pertaining to customers reseller and end-users (present, past and potential), all supplier lists and records pertaining to suppliersused in connection with the Business that are owned by Seller, books of account, files and ledgers, and other records or otherwise to the extent solely transferable by Seller without a violation of any Applicable Laws, policies or third party rights;
(i) all books, records, files, and specifically for documents of Seller relating to any of the Transferred Assets or otherwise related or necessary to the commercial exploitation of the Transferred Assets or the Assumed Liabilities and copies of the Tax books and records (redacted to exclude information not relating to the Transferred Assets or the Assumed Liabilities) relating to the Transferred Assets of the Assumed Liabilities and not otherwise provided pursuant to this clause (g), which shall also be made reasonably available to the Buyer prior to closing to inspect and make copies of, upon reasonable notice to Seller (collectively the “Business Records”)Business;
(hj) without limiting the Receivablesforegoing, all Seller Software and Intellectual Property Embodiments and Documentation; and
(ik) all goodwill of the Seller’s Business.
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