Purchase of Assets. Upon the terms and subject to the conditions contained in this Agreement, at the Closing (as defined in Section 2.7 below), the Company shall sell, assign, transfer and convey to Buyer, and Buyer shall purchase, acquire and accept from the Company, the modem development, manufacturing, distribution and sales business of the Company as a going concern (the "Business"), including all of the Company's assets of every kind and description relating to the Business (other than those assets included in the Retained Assets as defined in Section 2.2 below) (the "Transferred Assets"), and subject only to the liabilities and obligations of the Company which are defined in Section 2.3 (the "Assumed Liabilities"). The Transferred Assets include, without limitation, the following assets and properties (other than those assets included in the Retained Assets as defined in Section 2.2): (a) all assets relating to the Business owned by the Company. Such assets include, without limitation, (i) all trade and other accounts receivable and other Indebtedness owing to the Company with respect to the Business and including the benefit of all collateral, security, guaranties, and similar undertakings received or held in connection therewith (the Accounts Receivable); (ii) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transit; (iii) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (iv) all machinery, equipment, fixtures and furniture used in the Business and preliminarily listed on Schedule 2.1 (a final mutually agreed upon list to be provided to Buyer prior to the Closing); (v) all motor vehicles and; (vi) all real estate described on Schedule 3.10 attached hereto, provided, that Buyer shall have 30 days from the date hereof to complete its due diligence with respect to such property, and provided, further, that Buyer shall notify the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period. (b) all rights and interests of the Company in and to any Business contracts, including contracts for the purchase of materials, supplies and services and the sale of products and services, equipment leases, and any other contract of the Company relating to the Business, including, without limitation, those listed on Schedule 3.15 attached hereto; (c) copies of or access to all of the Company's books, records and other data relating to the Business; (d) all of the Company's goodwill, dealer and customer lists and all other sales and marketing information, and all knowhow, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of the Company in each case, relating to the Business; (e) all of the Company's interest in patents, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications (including, without limitation, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereof; (f) all permits, licenses, orders, ratings and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies that are held by the Company and relate to the Business, to the extent the same are transferable; (g) all rights of the Company to causes of action, lawsuits, judgments, claims and demands of any nature which would relate to the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating to the Business; (h) [Intentionally omitted] (i) all present and future insurance proceeds which may be payable under the insurance policies listed on Schedule 3.23 attached hereto to the extent that such proceeds relate to the future loss of asset value of the Purchased Assets; (j) except for Retained Assets described in Section 2.2 below, all other items of property, real or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit of the Company in each case, used in the Business (k) Intellectual property and associated html code that is transferable by the Company, as well as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx".
Appears in 2 contracts
Samples: Asset Purchase Agreement (Boca Research Inc), Asset Purchase Agreement (Oneworld Systems Inc)
Purchase of Assets. Upon the terms and subject to the conditions contained in this Agreement, at the Closing (as defined in Section 2.7 1.9 below), the Company shall sell, assign, transfer and convey to Buyer, and Buyer shall purchase, acquire and accept from the Company, the modem development, manufacturing, distribution and sales business of the Company as a going concern (the "Business"), including all of the Company's ’s assets of every kind and description relating to that are used or useful in the Company’s Business (as defined in this Section 1.1), free and clear of any liens whatsoever (the “Purchased Assets”) (other than those assets included in the Retained Assets as defined in Section 2.2 1.2 below) (the "Transferred Assets"), and subject only to the liabilities and obligations of the Company which are defined in Section 2.3 1.3 (the "“Assumed Liabilities"”). The Transferred Purchased Assets include, include without limitation, the following assets and properties (other than those assets included in the Retained Assets as defined in Section 2.2)::
(a) all assets relating of the Company’s rights under all licenses, permits, authorizations, orders, registrations, certificates, approvals, consents and franchises, or any pending applications for any of the foregoing, to the Business owned by extent such rights relate to the conduct of the Company. Such assets include, without limitation, (i) all trade ’s Business and other accounts receivable and other Indebtedness owing in each case to the Company with respect to the Business and including the benefit of all collateral, security, guaranties, and similar undertakings received extent transferable or held in connection therewith (the Accounts Receivable); (ii) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transit; (iii) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (iv) all machinery, equipment, fixtures and furniture used in the Business and preliminarily listed on Schedule 2.1 (a final mutually agreed upon list to be provided to Buyer prior to the Closing); (v) all motor vehicles and; (vi) all real estate described on Schedule 3.10 attached hereto, provided, that Buyer shall have 30 days from the date hereof to complete its due diligence with respect to such property, and provided, further, that Buyer shall notify the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period.assignable;
(b) all rights and interests of the interest of the Company and the Sole Member (whether held directly or indirectly through any other person or entity) in Intellectual Property (as such term is defined herein), patents, copyrights, trade names, service marks, trademarks, domain names, websites, licenses and to any Business contractssublicenses granted in respect thereto and rights thereunder, used in the conduct of the Company’s Business, remedies against infringement thereof and rights of protection of interests therein and all related goodwill, including contracts for without limitation the purchase of materials, supplies Intellectual Property and services and the sale of products and services, equipment leases, and any other contract of the Company relating to the Business, including, without limitation, those listed related rights as set forth on Schedule 3.15 attached hereto1.1(b) (the “Schedule 1.1(b) IP”);
(c) copies of or access to all of the Company's booksrights of the Company and the Sole Member (whether held directly or indirectly through any other person or entity) to any domain names, records universal resource locators (URLs), websites, webpages and other data relating booking engines to the Businessextent used in the conduct of the Company’s Business as set forth on Schedule 1.1(c);
(d) all of the Company's goodwill’s rights under those contracts, dealer agreements, licenses, leases, commitments, undertakings, arrangements, understandings or such other documents or instruments as set forth on Schedule 1.1(d), to the extent such rights relate to the conduct of the Company’s Business (the “Purchased Contracts”);
(e) all of the Company’s claims, customer deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of setoff and rights of recoupment, to the extent any of the foregoing relate to the conduct of the Company’s Business after the Closing and whether or not recorded in the books and records of the Company;
(f) all of the Company’s (i) advertiser and customer lists and all other sales and marketing information, and all knowhow(ii) know-how, technology, drawings, engineering specifications, bills of materials, software (iii) software, database and related programs used in the conduct of the Company’s Business, and (iv) other intangible assets of the Company in each case, relating to the Business;
(e) all of the Company's interest in patents, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications (including, without limitation, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereof;
(f) all permits, licenses, orders, ratings and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies that are held by the Company and relate to the Business, to the extent the same are transferable;
(g) all rights of Xxxxxxxx’x personal computer and the servers leased by the Company to causes of action, lawsuits, judgments, claims and demands of any nature which would relate to the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating to the Businessas set forth on Schedule 1.1(g);
(h) [Intentionally omitted]
(i) all present and future insurance proceeds records which may be payable under the insurance policies listed on Schedule 3.23 attached hereto to the extent that such proceeds relate to the future loss of asset value operations and finance of the Purchased Assets;
(j) except for Retained Assets described in Section 2.2 below, all other items of property, real or personal, tangible or intangibleCompany, including, without limitation, all restrictive and negative covenant agreements with employees and othersbooks, includingrecords, without limitationledgers, nondisclosure agreementsfiles, documents, correspondence, computer programsdiscs, tapesdiagrams, discs construction data, blueprints, instruction manuals, maintenance manuals, reports and timesharing filessimilar documents used or useful in connection with the Company’s Business (the “Records”);
(i) the Company’s corporate name and any trade names (current and any former, owned, used by or accruing to the benefit if applicable) and any and all goodwill associated therewith; and
(j) all other assets of the Company in each caseof every kind and description, tangible or intangible, to the extent used in the Business
(k) Intellectual property conduct of the Company’s Business not provided for above. For the purposes of this Agreement, the Company’s Business shall mean the development, operation and/or management of Websites or information services relating to the yellow pages, white pages and associated html code that is transferable local and geographical search and directory markets and the subcategories operated or supported by the Company, as well as the exclusive rights Company to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx"date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Marchex Inc), Asset Purchase Agreement (Marchex Inc)
Purchase of Assets. Upon the terms and subject to the conditions contained in this Agreement, at the Closing (as defined in Section 2.7 below), the Company shall sell, assign, transfer and convey to Buyer, and Buyer shall purchase, acquire and accept from the Company, the modem development, manufacturing, distribution and sales assets comprising the Healthcare Internet/Intranet business of the Company as a going concern (the "Business"), including all of the Company's assets of every kind and description relating to the Business (other than those assets included in the Retained Assets as defined in Section 2.2 below) (the "Transferred Purchased Assets"), and subject only to the liabilities and obligations of the Company which are defined in Section 2.3 (the "Assumed Liabilities"). The Transferred Purchased Assets include, without limitation, the following assets and properties (other than those assets included in the Retained Assets as defined in Section 2.2):
(a) all assets relating to the Business owned by the Company. Such assets include, without limitation, (i) all trade and other accounts receivable and other Indebtedness owing to the Company with respect to the Business and including the benefit of all collateral, security, guaranties, and similar undertakings received or held in connection therewith (the "Accounts Receivable"); ;
(iib) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transit; ;
(iiic) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; ;
(ivd) all machinery, equipment, fixtures and furniture used in the Business and preliminarily listed identified on Schedule 2.1 1.1
(a final mutually agreed upon list to be provided to Buyer prior to the Closing); (ve) all motor vehicles and; vehicles;
(vif) all real estate described on Schedule 3.10 attached hereto, provided, that Buyer shall have 30 days from the date hereof to complete its due diligence with respect to such property, and provided, further, that Buyer shall notify the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid supplies owned by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period.;
(bg) all rights and interests of the Company in and to any Business leases, subleases, licenses, loan agreements, mortgages, notes, indentures, restrictions, xxxxx, trusts, commitment obligations or other contracts, agreements or instruments, whether written or oral or other similar agreements ("Contracts"), and rights thereunder, including without limitation, the designated Contracts relating to the Company set forth on Schedule 2.12 including contracts for the purchase of materials, supplies and services and the sale of products and services, equipment leases, and any other contract of the Company relating to the Business, including, without limitation, those listed on Schedule 3.15 attached hereto;
(ch) copies of all business and financial records, books, ledgers, files, plans, documents, correspondence, lists, plots, architectural plans, drawings, notebooks, specifications, creative materials, advertising and promotional materials, marketing materials, studies, reports, equipment repair, maintenance or access to all service records of the Company's books, records and other data whether written or electronically stored or otherwise recorded in each case, relating to the Business;
(di) all of the Company's goodwill, dealer and customer lists and all other sales and marketing information, and all knowhow, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of the Company in each case, relating to the Business;
(ej) all of the Company's interest in patents, patent applications, proprietary designs, copyrights, tradenamestrademarks, servicemarksservice marks, trademarks trade names, trade secrets, proprietary information, technology rights and trademark applications (licenses, proprietary rights and processes, know-how, research and development in progress, and any and all other intellectual property including, without limitation, the exclusive right Company Intellectual Property Rights, the Company's name, all things authored, discovered, developed, made, perfected, improved, designed, engineered, devised, acquired, produced, conceived or first reduced to use practice and that pertain to or are used in the names "Global Village" Business or that are relevant to an understanding or to the development of the Business or to the performance by the products of the Business of their intended functions or purposes, whether tangible or intangible, in any stage of development, including without limitation, enhancements, designs, technology, improvements, inventions, works or authorship, formulas, processes, routines, subroutines, techniques, concepts, object code, flow charts, diagrams, coding sheets, source code, listings and "Teleport" annotations, programmers' notes, information, work papers, work product and all variants thereof)other materials or any types whatsoever, and all patentsrights of any kind in or to any of the foregoing including all goodwill associated therewith, trademarks, servicemarks, proprietary designs, trade names, assumed names licenses and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business sublicenses granted and together obtained with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all claims or causes of action for infringement thereofjurisdictions;
(fk) all permits, licenses, orders, ratings and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies that are held by the Company and relate to the Business, to the extent the same are transferable;
(gl) all rights of the Company to causes of action, lawsuits, judgments, claims and demands of any nature which would relate to the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating to the Business;
(h) [Intentionally omitted]
(im) all present and future insurance proceeds which may be payable under the insurance policies listed on Schedule 3.23 2.16 attached hereto to the extent that such proceeds relate to the future loss of asset value of the Purchased Assets;
(jn) except for Retained Assets described in Section 2.2 1.2 below, all other items of property, real or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit of the Company in each case, used in the Business; and
(ko) Intellectual property and associated html code that is transferable by the Company, as well as the exclusive rights to operate the Global Village Company's website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx"xxx.xxxxxxxx.xxx.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Healtheon Corp), Asset Purchase Agreement (Healtheon Corp)
Purchase of Assets. Upon (a) Subject to and upon the terms and subject to the conditions contained in of this Agreement, at the closing of the transactions contemplated by this Agreement (the "Closing"), the Seller shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, all of Seller's right, title and interest in and to the following specifically identified properties, assets and other claims, rights and interests to the extent that and only to the extent that they relate solely to the Product Lines and the Business, and specifically excluding, without limitation, the Excluded Assets as defined in Section 1.3:
(i) the inventories of finished goods, samples, trade packs and similar items of the Seller which exist on the Closing Date (as defined in Section 2.7 1.8 below), the Company shall sell, assign, transfer and convey to Buyer, and Buyer shall purchase, acquire and accept from the Company, the modem development, manufacturing, distribution and sales business of the Company ) as a going concern set forth on Schedule 1.1(a)(i) hereto (the "BusinessInventory"); 2
(ii) the regulatory approvals, including all of the Company's assets of every kind registrations and description relating to the Business (other than those assets included in the Retained Assets as defined in Section 2.2 belowrelated materials set forth on Schedule 1.1(a)(ii) hereto (the "Transferred AssetsRegistrations"), and subject only to the liabilities and obligations of the Company which are defined in Section 2.3 (the "Assumed Liabilities"). The Transferred Assets include, without limitation, the following assets and properties (other than those assets included in the Retained Assets as defined in Section 2.2):;
(a) all assets relating to the Business owned by the Company. Such assets include, without limitation, (i) all trade and other accounts receivable and other Indebtedness owing to the Company with respect to the Business and including the benefit of all collateral, security, guaranties, and similar undertakings received or held in connection therewith (the Accounts Receivable); (ii) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transit; (iii) all prepaid expensesthe rights of the Seller arising after the Closing Date under the contracts, deposits leases, licenses and rights to refunds from customers other instruments set forth on Schedule 1.1(a)(iii) hereto, including private label manufacturing agreements and suppliers with respect to sales broker contracts (collectively, the Business; "Contracts");
(iv) all machinery, equipment, fixtures and furniture used in rights of the Business and preliminarily listed on Schedule 2.1 (a final mutually agreed upon list to be provided to Buyer prior Seller under express or implied warranties from the suppliers of the Seller to the Closing); extent such warranties relate to Inventory;
(v) all motor vehicles and; the Seller's right, title and interest in and to the trademarks Feverall(R) and Sprinkle Caps(R), but excluding the Upshxx-Xxxxx xxxe and logo and the Uniserts(R) name (the "Trademarks");
(vi) all real estate described of the Seller's right, title and interest in and to the intangible property rights (including but not limited to inventions, discoveries, trade secrets, master formulations for the Product Lines ("Master Formulations"), master processes used by the Seller for manufacturing the Product Lines from the Master Formulations ("Master Processes"), know-how, United States and foreign patents, patent applications, copyrights, copyright registrations) owned and used or, where not owned, used by the Seller, but only to the extent actually so used, in connection with the manufacture of the Product Lines and the licenses and other agreements to which the Seller is a party (as licensor or licensee) or by which the Seller is bound relating to any of the foregoing kinds of property or rights (collectively, the "Intangible Property"); notwithstanding the foregoing, Buyer shall be entitled to use the Intangible Property herein conveyed for the limited purpose of manufacturing those products presently constituting the Product Lines of Seller, together with future modifications, variations and additions to those products which may in the future form a part of the expanded Product Lines as manufactured and sold by or on behalf of Buyer; and
(vii) all unfilled orders (if any) relating to the Product Lines or the Business as of the Closing Date, including those set forth on Schedule 3.10 attached 1.1(a)(vii) hereto, provided, that Buyer shall have 30 days from the date hereof to complete its due diligence with respect to such property, and provided, further, that Buyer shall notify the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period.
(b) all rights The Inventory, Registrations, Contracts, Trademarks, Intangible Property and interests other properties, assets and business of the Company in and to any Business contracts, including contracts for the purchase of materials, supplies and services and the sale of products and services, equipment leases, and any other contract of the Company relating to the Business, including, without limitation, those listed on Schedule 3.15 attached hereto;
(c) copies of or access to all of the Company's books, records and other data relating to the Business;
(d) all of the Company's goodwill, dealer and customer lists and all other sales and marketing information, and all knowhow, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of the Company in each case, relating to the Business;
(e) all of the Company's interest in patents, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications (including, without limitation, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereof;
(f) all permits, licenses, orders, ratings and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies that are held by the Company and relate to the Business, to the extent the same are transferable;
(g) all rights of the Company to causes of action, lawsuits, judgments, claims and demands of any nature which would relate to the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating to the Business;
(h) [Intentionally omitted]
(i) all present and future insurance proceeds which may be payable under the insurance policies listed on Schedule 3.23 attached hereto to the extent that such proceeds relate to the future loss of asset value of the Purchased Assets;
(j) except for Retained Assets Seller described in Section 2.2 below, all other items of property, real or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing paragraph (a) above shall be referred to the benefit of the Company in each case, used in the Business
(k) Intellectual property and associated html code that is transferable by the Company, as well collectively as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxxAssets.", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx".
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ascent Pediatrics Inc), Asset Purchase Agreement (Ascent Pediatrics Inc)
Purchase of Assets. Upon (a) On the terms and subject to the conditions contained set forth in this Agreement, at as of the Closing (or with respect to Assumed Contracts that are not Initial Assumed Contracts, as defined in Section 2.7 belowsoon as practicable after the identification of each such Assumed Contract), the Company shall sell, assign, transfer transfer, convey and convey deliver to BuyerPurchaser, and Buyer Purchaser shall purchase, acquire and accept from the Company, the modem developmentfree and clear of any Adverse Interests and Retained Liabilities, manufacturing, distribution and sales business of the Company as a going concern (the "Business"), including all of the Company's properties, assets and rights of every kind nature, tangible and description relating to intangible, real and personal, whether accrued, contingent or otherwise, of the Business (Company, including, without limitation, those assets listed or described below, as the same shall exist on the Closing Date, other than those assets included in the Retained Excluded Assets as defined in Section 2.2 below) (the "Transferred properties, assets and rights assigned pursuant to this Section 1.1 being referred to herein as the “Assets"), and subject only to the liabilities and obligations of the Company which are defined in Section 2.3 (the "Assumed Liabilities"”). The Transferred Assets include, without limitation, the following categories of properties, assets and properties rights (other than those assets included excluding in each case the Retained Assets as defined in Section 2.2Excluded Assets):
(a) all assets relating to the Business owned by the Company. Such assets include, without limitation, (i) all trade and other accounts receivable and other Indebtedness owing to the Company with respect to the Business and including the benefit of all collateralinventory, security, guaranties, and similar undertakings received or held in connection therewith (the Accounts Receivable); (ii) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in processsupplies, finished goods and goods in transit; , including inventory (iiix) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (iv) all machinery, equipment, fixtures and furniture used in the Business and preliminarily listed on Schedule 2.1 possession of the Company or (a final mutually agreed upon list y) to be provided delivered after the Closing by suppliers of the Company pursuant to Buyer letters of credit issued on behalf of the Company at or prior to the ClosingClosing (including Inventory in stores the Leases of which are not assumed by Purchaser); (v) all motor vehicles and; (vi) all real estate described on Schedule 3.10 attached hereto, providedbut in each case excluding inventory, that Buyer shall have 30 days from the date hereof to complete its due diligence with respect to such propertysupplies, finished goods and provided, further, that Buyer shall notify goods in transit of the Company that are (x) damaged or otherwise designated as “return to vendor” or (y) designated to be sold as part of its intention to sublease a bulk sale (collectively, the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period.“Inventory”);
(bii) all rights and interests incidents of interest of the Company in and to any Business contractsall executory contracts and unexpired leases that are identified in writing by the Purchaser on or prior to the date that is 60 days from the date of the completion of the Auction (as defined in the Bid Procedures Order) (such date, including the “Designation Date”) as contracts for to be assumed by the purchase Company and assigned to Purchaser (collectively, the “Assumed Contracts”); provided that Purchaser shall designate one hundred-fifty (150) Leases as Assumed Contracts or Designated Leases. Schedule 1.1(a)(ii) hereto sets forth a list of materialsa certain number of Leases which shall be designated by Purchaser as Initial Assumed Contracts as defined in Section 1.5(a). To the extent Schedule 1.1(a)(ii) fails to do so, supplies Purchaser agrees that it shall provide the Company with a complete list of eighty-nine (89) of such Initial Assumed Contracts by the close of business, Los Angeles time, on February 17, 2004;
(iii) other than executory contracts or unexpired leases of the Company, which are dealt with exclusively in Section 1.1(a)(ii), all rights and services and the sale incidents of products and services, equipment leases, and any other contract interest of the Company in and to all agreements, contracts, purchase orders and licenses entered into, accepted or made by the Company, unless otherwise identified in writing by Purchaser prior to Closing as an agreement, contract or license not to be included in the Assets;
(iv) all deposits and all other prepaid items that relate to the Company’s business or the Assets, excluding rights under prepaid insurance policies relating to coverage in the Pre-Closing Period or all deposits under any executory contracts and unexpired leases that are not Assumed Contracts or Designated Leases;
(v) all equipment, computers, furniture, furnishings, fixtures, office supplies, supply inventory, vehicles and all other fixed assets owned by, or on order to be delivered to, the Company;
(vi) all Owned Intellectual Property Rights and Licensed Intellectual Property Rights;
(vii) all rights of the Company under all warranties, representations and guarantees made by suppliers, manufacturers and contractors in connection with any Assets;
(viii) to the extent transferable, all licenses, permits, authorizations and approvals issued to the Company by any Governmental Entity;
(ix) all books and records, whether in hard copy or computer format, and all computer systems files (including files required for historical analysis) furnished in agreed electronic formats and data transfer methods of the Company;
(x) all goodwill associated with the Company or the Assets; and
(xi) all of the Company’s rights, claims, credits, causes of action or rights of set-off against Third Parties relating to the BusinessAssets arising in the ordinary course of business (excluding all claims by Company under this Agreement, under Sections 544, 545, 547, 548 and 550 of the Bankruptcy Code, that are based on conduct related to the Chapter 11 Case or that are the subject of pending litigation against Great American Liquidators or Sunrise Mall), including, without limitation, those listed unliquidated rights under manufacturers’ and vendors warranties.
(b) At the Closing, Purchaser shall make a cash payment to the Company in exchange for the Assets in an amount equal to 85% of the Inventory Value plus $3,530,000 (the sum being referred to herein as, the “Cash Consideration”) minus the Good Faith Deposit and all interest earned thereon. The “Inventory Value” shall be equal to the value (at cost) of the Inventory of the Company at the Closing, net of a reserve for Inventory “shrinkage,” in each case determined on Schedule 3.15 attached hereto;a basis consistent with the Company’s past practices from the books and records of the Company; provided that the amount of the reserve shall be adjusted to equal 1.5%, which equals the average “shrinkage” in the physical inventory based on the results of the physical inventory conducted by the Company of its stores in September of 2004. At Closing, the Chief Financial Officer of the Company shall provide a certificate to Purchaser certifying as to the amount of the Inventory Value and the interest earned on the Good Faith Deposit.
(c) copies of or access to all of At the Company's booksClosing, records and other data relating to the Business;
(d) all of the Company's goodwillas additional consideration, dealer and customer lists and all other sales and marketing information, and all knowhow, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of Purchaser shall issue the Company an unsecured, non-negotiable promissory note of Purchaser in each casean aggregate principal amount of $2,700,000 (the “Note”, relating to the Business;
(e) all of the Company's interest in patents, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications (including, without limitation, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business and together with the goodwill appurtenant theretoCash Consideration, the “Consideration”). The Note shall bear interest at a rate per annum equal to LIBOR plus two-percent (2%). Fifty percent (50%) of the original principal amount of the Note and all federalinterest accrued thereon shall be due and payable on December 31, state, local and foreign registrations thereof2005 (or, if applicablesuch date is not a business day, all common law rights thereto, on the next preceding business day prior to such date) and all claims remaining principal and interest remaining unpaid on the Note shall be due and payable on March 31, 2006 (or, if such date is not a business day, on the next preceding business day prior to such date); provided, however, that Purchaser may voluntarily prepay the outstanding interest and principal due under the Note at any time without penalty or causes of action for infringement thereof;
(f) all permits, licenses, orders, ratings premium. The Note shall contain such other terms and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies that are held conditions as to be mutually agreed upon by the Company and relate to the Business, to the extent the same are transferable;
(g) all rights of the Company to causes of action, lawsuits, judgments, claims and demands of any nature which would relate to the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating to the Business;
(h) [Intentionally omitted]
(i) all present and future insurance proceeds which may be payable under the insurance policies listed on Schedule 3.23 attached hereto to the extent that such proceeds relate to the future loss of asset value of the Purchased Assets;
(j) except for Retained Assets described in Section 2.2 below, all other items of property, real or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit of the Company in each case, used in the Business
(k) Intellectual property and associated html code that is transferable by the Company, as well as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx"Purchaser.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Gadzooks Inc)
Purchase of Assets. Upon Subject to the terms and subject to the conditions contained in of this Agreement, at the Closing (as defined in Section 2.7 below6.1), the Company Sellers shall sell, assigntransfer, transfer convey, assign and convey deliver to Buyer, and Buyer shall purchase, acquire and accept from the CompanySellers, the modem development, manufacturing, distribution and sales business of the Company as a going concern (the "Business"), including all of the Company's assets of every kind and description relating to the Business each Seller (other than those assets included in the Retained Assets as defined in Section 2.2 belowExcluded Assets) (collectively, the "Transferred “Acquired Assets"”), free and subject only to the liabilities and obligations clear of the Company which are defined in Section 2.3 (the "Assumed Liabilities"). The Transferred Assets include, without limitation, the following assets and properties all Liens (other than those assets included in the Retained Assets as defined in Section 2.2):Permitted Liens), expressly including, but not limited to:
(a) all assets relating to the Business owned by the Company. Such assets includeAll vehicles, without limitation, (i) all trade and other accounts receivable and other Indebtedness owing to the Company with respect to the Business and including the benefit of all collateral, security, guaranties, and similar undertakings received or held in connection therewith (the Accounts Receivable); (ii) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transit; (iii) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (iv) all machinery, equipment (including HVAC equipment), furniture, fixtures and furniture used in the Business and preliminarily listed other tangible personal property which are specifically set forth on Schedule 2.1 2.1(a) or are otherwise acquired by any Seller after the Signing Date or owned by any Seller at the Closing Date (a final mutually agreed upon list to be provided to Buyer prior to the Closing“Equipment”); (v) all motor vehicles and; (vi) all real estate described on Schedule 3.10 attached hereto, provided, that Buyer shall have 30 days from the date hereof to complete its due diligence with respect to such property, and provided, further, that Buyer shall notify the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period.;
(b) all rights All raw materials (including API), supplies, work in progress and interests inventory of finished products, including without limitation (i) those specifically set forth on Schedule 2.1(b), owned by any Seller and forming part of the Business (collectively, “Inventory”) and (ii) those acquired or produced after the Signing Date and not sold in the ordinary course of business with Schedule 2.1(b) to be supplemented by Company in and not later than ten (10) Business Days prior to any Business contracts, including contracts for the purchase of materials, supplies and services Closing Date to reflect such additional Inventory and the sale of products and services, equipment leases, and any other contract of the Company relating to the Business, including, without limitation, those shelf life for each item listed on Schedule 3.15 attached heretothereon;
(c) copies of or access to all All of the Company's accounts, notes and other receivables of any Seller and all rights relating thereto existing or accrued as of the Closing Date (“Receivables”), including without limitation those specifically set forth on Schedule 2.1(c), other than the Excluded Receivables (as defined in Section 2.9 below);
(d) All products approved, pending approval and in development by any Seller, whether or not discontinued or previously marketed (the “Products”), including without limitation (i) those specifically set forth on Schedule 2.1(d) and (ii) those produced after the Signing Date and not sold in the ordinary course of business;
(e) All Intellectual Property owned by any Seller or licensed by any Seller under the Assumed Contracts, including without limitation (i) the rights of each Seller in and to any and all product names and logos, (ii) the Product Scientific and Regulatory Material, (iii) the Product Intellectual Property,and (iv) the Product Marketing Materials.
(f) All other owned intangible assets of each Seller, including but not limited to the customer list and supplier list used in the Business;
(g) All ANDAs relating to Products under development by any Seller, including without limitation (i) those specifically set forth on Schedule 2.1(g), (ii) any correspondence with the FDA in any Seller’s files with respect to such ANDAs, (iii) the right of reference to the Drug Master Files included in such ANDAs, and (iv) annual reports relating to the ANDAs which are filed with the FDA, and adverse event reports, history and statistics pertaining to the Products;
(h) All Contracts of any Seller which are specifically set forth on Schedule 2.1(h) (the “Assumed Contracts”);
(i) The existing lists of all customers for the Products (both current customers and all Persons who were customers within the 24 month period prior to the Signing Date); a list of the annual net sales to such customers; a list including the name, and business contact information, of the Employee(s) for each High Volume Account that is or has been responsible for the purchase of the Products on behalf of the High Volume Account;
(j) All outstanding customer purchase orders for the Products;
(k) A list of all NDC Numbers;
(l) The Product Reports;
(m) All books, records, and facility and equipment qualification documents related to the manufacturing, packaging and testing of drug products at the site including, but not limited to, manufacturing, packaging, and laboratory facility qualification; HVAC qualification; compressed air qualification; process equipment qualification; laboratory instrument qualification; and water system validation;
(n) All books and records related to the Products under development including, but not limited to laboratory notebooks, technical reports, batch records, product evaluation reports, call reports and other data the like in any way relating to the Business;
(do) all of the Company's goodwillAll business and accounting records, dealer data, supplier, dealer, broker, distributor and customer lists lists, manuals, books, files, procedures, systems, business records, production records, advertising materials and other proprietary information relating to the Business, and copies of employee files and records;
(p) All prepaid expenses in the ordinary course;
(q) All rights in and to any Permits;
(r) All Claims, deposits, refunds, rebates, causes of action, choses in action, rights of recovery, and other rights of action against third parties;
(s) All transferable warranties or similar rights in favor of Sellers;
(t) All telephone and facsimile numbers and all other sales and marketing information, and all knowhow, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of the Company in each case, relating to domain names associated with the Business;
(eu) Sellers’ entire right and interest in and to ten (10) Class A limited liability company membership interests in APR, LLC, a Delaware limited liability company (the “APR Interest”);
(v) The right to enforce, for Buyer’s benefit as a third party beneficiary, any and all of the Company's interest in patentsSellers’ rights which directly or indirectly pertain to non-disclosure, patent applicationsnon-solicitation, proprietary designsnon-competition, copyrightsnon-disparagement and assignment of property covenants made by Sellers’ Employees or directors under any Contract, tradenames, servicemarks, trademarks and trademark applications (including, without limitation, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof)whether or not an Assumed Contract, and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating rights under said Contract ancillary to the Business foregoing; and
(w) All other intangible personal property and together the goodwill associated with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereof;
(f) all permits, licenses, orders, ratings and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies that are held by the Company and relate to the Business, to the extent the same are transferable;
(g) all rights of the Company to causes of action, lawsuits, judgments, claims and demands of any nature which would relate to the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating to the Business;
(h) [Intentionally omitted]
(i) all present and future insurance proceeds which may be payable under the insurance policies listed on Schedule 3.23 attached hereto to the extent that such proceeds relate to the future loss of asset value of the Purchased Assets;
(j) except for Retained Assets described in Section 2.2 below, all other items of property, real or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit of the Company in each case, used in the Business
(k) Intellectual property and associated html code that is transferable by the Company, as well as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx".
Appears in 2 contracts
Samples: Asset Purchase Agreement (Aisling Capital II LP), Asset Purchase Agreement (Interpharm Holdings Inc)
Purchase of Assets. Upon Subject to the terms and subject to the conditions contained in of this Agreement, at the Closing (as defined in Section 2.7 below)Closing, the Company Seller shall sell, assigntransfer, transfer convey, assign and convey deliver to Buyer, and Buyer shall purchase, acquire and accept from the Company, the modem development, manufacturing, distribution and sales business of the Company as a going concern (the "Business"), including Seller substantially all of the Company's assets of every kind and description relating to the Business (Business, other than those assets included in the Retained Excluded Assets as defined in Section 2.2 below) (collectively, the "Transferred “Acquired Assets"”), free and subject only to the liabilities and obligations clear of the Company which are defined in Section 2.3 all Liens (the "Assumed Liabilities"except for Permitted Liens). The Transferred Assets include, without limitationexpressly including, the following assets and properties (other than those assets included in the Retained Assets as defined in Section 2.2):but not limited to:
(a) all assets relating to the Business owned by the Company. Such assets include, without limitation, (i) all trade and other accounts receivable and other Indebtedness owing to the Company with respect to the Business and including the benefit of all collateral, security, guaranties, and similar undertakings received or held in connection therewith (the Accounts Receivable); (ii) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transit; (iii) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (iv) all machinery, equipment, fixtures and furniture used in the Business and preliminarily listed on Schedule 2.1 (a final mutually agreed upon list to be provided to Buyer prior to the Closing); (v) all motor vehicles and; (vi) all real estate described on Schedule 3.10 attached hereto, provided, that Buyer shall have 30 days from the date hereof to complete its due diligence with respect to such property, and provided, further, that Buyer shall notify the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period.Leased Real Property;
(b) all rights and interests the inventory of the Company in and to any Business contracts, including contracts for the purchase of materials, supplies and services and the sale of products and services, equipment leases, and any other contract of the Company relating to the Business, including, without limitation, those listed on Schedule 3.15 attached hereto;
(c) copies of all supplies located at the Acquired Facilities or access to all of the Company's books, records and other data otherwise relating primarily to the Business;
(d) all of the Company's goodwill, dealer and customer lists and all other sales and marketing information, and all knowhow, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of the Company in each case, prepaid expenses relating to the Business;
(e) all accounts receivable of the Company's interest in patents, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications (including, without limitation, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereofBusiness;
(f) all permitsfurniture, licenses, orders, ratings fixtures and approvals of all federal, state, local other tangible personal property located at the Acquired Facilities or foreign governmental or regulatory authorities or industrial bodies that are held by the Company and relate otherwise relating primarily to the Business, to the extent the same are transferable;
(g) all rights of vehicles, equipment and related parts, spares and associated materials located at the Company to causes of action, lawsuits, judgments, claims and demands of any nature which would relate to the Business Acquired Facilities or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties otherwise relating primarily to the Business;
(h) [Intentionally omitted]all rights in, to and under the Contracts listed on Schedule 2.1(h) (the “Assumed Contracts”);
(i) all present rights in and future insurance proceeds which may to any licenses, certificates, approvals, Permits and other authorizations relating primarily to the Business issued or to be payable under the insurance policies listed on Schedule 3.23 attached hereto issued by any Governmental Authority, to the extent that such proceeds relate to the future loss of asset value of the Purchased Assetsassignable;
(j) except for Retained Assets described in Section 2.2 belowcopies of all business and accounting records, all other items of propertydata, real or personalsupplier, tangible or intangibledealer, includingbroker, without limitationdistributor and customer lists, all restrictive and negative covenant agreements with employees and othersmanuals, includingbooks, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, ownedpricing information, used by or accruing procedures, systems, business records, production records, advertising materials and other proprietary information relating primarily to the benefit of the Company in each caseBusiness (collectively, used in the Business“Records”);
(k) except as set forth in Schedule 2.1(k), all Intellectual Property used in operating the Business;
(l) all claims, deposits, refunds (other than Tax refunds), rebates, causes of action, rights of recovery, rights of recoupment and other rights of action against third parties arising in connection with the conduct of the Business, except to the extent the same relate to any Excluded Assets;
(m) all transferable warranties or similar rights relating to other Acquired Assets;
(n) all other intangible personal property relating exclusively to the Business and the goodwill associated html code that is transferable by with the Company, as well as Business; and
(o) any and all other property used exclusively in the exclusive rights to operate operation of the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx"Business.
Appears in 1 contract
Purchase of Assets. Upon the terms and subject to the conditions contained in this Agreement, at the Closing (as defined in Section 2.7 belowARTICLE III, and, with respect to or arising out of the purchase the Rocket Boulevard property from the Company, the Real Estate Purchase and Sale Agreements), the Company shall sell, assign, transfer and convey to Buyerthe Buyer or TEI (as shall be determined by TEI at or prior to the Closing), and the Buyer or TEI (as shall be determined by TEI at or prior to the Closing) shall purchase, acquire and accept from the Company, the modem development, manufacturing, distribution and sales business of the Company as a going concern (the "Business"), including all of the following assets owned or leased by the Company (the “Purchased Assets”) and used by the Company in the operation of the Company's assets of every kind and description relating to the ’s Business (other than those assets included in the defined as “Retained Assets Assets,” as such term is defined in Section 2.2 below) (the "Transferred Assets"), and subject only to the liabilities and obligations of the Company which are defined in Section 2.3 (the "Assumed Liabilities"). The Transferred Purchased Assets include, without limitation, shall consist of only the following assets and properties (other than those properties, provided, however, that notwithstanding the following list of assets included in and properties, none of the Purchased Assets shall include any of the Retained Assets as defined in Section 2.2):Assets:
(a) all assets relating to the Business owned by the Company. Such assets includeCompany set forth on Schedule 2.1(a) attached hereto, including, without limitation, : (i) all trade and other accounts receivable and other Indebtedness owing to inventories owned by the Company with respect to the Business and including the benefit of all collateral, security, guaranties, and similar undertakings received or held in connection therewith (the Accounts Receivable); (ii) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transit; (iii) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (ivii) all machinery, computers, computer software programs, equipment, processing equipment, fixtures and furniture used in owned by the Business Company; and preliminarily listed on Schedule 2.1 (a final mutually agreed upon list to be provided to Buyer prior to the Closing); (viii) all motor vehicles and; owned by the Company;
(vib) all real estate described on Schedule 3.10 attached hereto, provided, of the trade and other accounts receivable of the Business outstanding as of the Closing and that Buyer shall have 30 days from the date hereof are payable to complete its due diligence with respect to such property, and provided, further, that Buyer shall notify the Company of its intention to sublease the space currently occupied and all receivables for work performed by the Company upon as of the same terms as currently paid Closing but not yet billed by the Company, receive an assignment Company as of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period.Closing;
(bc) all rights and interests of the Company in and to any those certain contracts relating to the Business contracts, including contracts of the Company that are transferable for the purchase of materials, supplies and services and the sale of products and services, equipment leases, real estate leases, capital leases, and any other contract of licenses listed under the Company relating to the Business, including, without limitation, those listed applicable heading on Schedule 3.15 Schedules 2.1(c) attached hereto;
(c) copies of or access to all of the Company's books, records and other data relating to the Business;
(d) all of the Company's ’s books, records and other data, except minute and stock record books, journals, ledgers and books of original entry, provided, however, that Parent may retain copies of such books and records;
(e) all of the Company’s goodwill, dealer and customer lists and all other sales and marketing information, and all knowhowknow-how, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of the Company in each case, relating to the BusinessCompany;
(ef) all of the Company's ’s interest in patents, patent applications, proprietary designs, copyrights, tradenamestrade names, servicemarks, trademarks and trademark applications (including, without limitation, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached heretoapplications, in each case relating to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereof;
(fg) all permitspermits (including, without limitation, all Environmental Permits) licenses, orders, ratings and approvals of all federal, state, state or local or foreign governmental or regulatory authorities or industrial bodies that which are held by the Company and relate to the BusinessCompany, to the extent the same are transferable;
(gh) all rights cash and cash equivalents and restricted cash of the Company to causes as of actionthe Closing Date, lawsuits, judgments, claims and demands of any nature which would relate to except the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating to the BusinessPurchase Price;
(h) [Intentionally omitted]
(i) the Rocket Boulevard property;
(j) all present and future insurance proceeds prepaid expenses of the Company as of the Closing Date for which may be payable under the insurance policies listed on Schedule 3.23 attached hereto to the extent that such proceeds relate to the future loss of asset value Buyer will receive a benefit upon transfer of the Purchased Assets;
(jk) except for Retained Assets described in Section 2.2 below, all other items of property, real or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit customer accounts of the Company in each case, used in and backlog of the BusinessCompany as of the Closing Date; and
(kl) Intellectual property and associated html code that is transferable by all business records relating to each of the Company, as well as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx"aforementioned items.
Appears in 1 contract
Samples: Asset Purchase Agreement (Perma Fix Environmental Services Inc)
Purchase of Assets. Upon (a) On the terms and subject to the conditions contained in this Agreement, at on the Closing (as defined in Section 2.7 below)Date, the Company Purchaser or one or more of its Affiliates shall purchase, and Seller or one or more of its Affiliates shall sell, convey, assign, transfer and convey deliver, free and clear of all Indebtedness and Encumbrances (except for any Permitted Encumbrances) by appropriate instruments of conveyance reasonably satisfactory to BuyerPurchaser, all assets, properties, rights, titles and Buyer shall purchaseinterests of every kind or nature owned, acquire leased, licensed or otherwise held by Seller or its Affiliates (including indirect and accept from other forms of beneficial ownership) as of the CompanyClosing Date, whether tangible, intangible, real or personal and wherever located, which are exclusively used by, or exclusively for the benefit of, the modem development, manufacturing, distribution and sales business of Division in operating the Company as a going concern (Business or are exclusively related to the "Business"), including all of the Company's following assets of every kind and description relating which are exclusively used by, or exclusively for the benefit of, the Division in operating the Business or are exclusively related to the Business Business, but excluding all Excluded Assets (nothing herein shall be deemed to require conveyance of any assets that are used by or in any other than those business of Seller, which assets included in may be subject to the Retained Assets as defined in Section 2.2 belowTransition Services Agreement or one or more other shared facility agreements) (all such assets, whether to be conveyed directly by asset transfer or indirectly by transfer of capital stock of an Acquired Subsidiary, hereinafter referred to as the "Transferred Division Assets")):
(i) all accounts receivable and all correspondence with respect thereto, and subject only to the liabilities and obligations of the Company which are defined in Section 2.3 (the "Assumed Liabilities"). The Transferred Assets include, including without limitation, all trade accounts receivable, notes receivable from customers, vendor credits and accounts receivable from employees and all other obligations from customers with respect to sales of goods or services, whether or not evidenced by a note;
(ii) all prepayments, prepaid expenses and other assets (it being agreed that between the following date of this Agreement and the Closing Date, the parties will prepare and mutually agree upon a specifically identifiable list of such assets and properties attach such list hereto as Schedule 1.1(a)(ii));
(other than those iii) all Acquired Stock;
(iv) all interests in leased or subleased real estate set forth on Schedule 1.1(a)(iv);
(v) all inventories, work in progress and supplies (it being agreed that between the date of this Agreement and the Closing Date, the parties will prepare and mutually agree upon a specifically identifiable list of such assets included in the Retained Assets and attach such list hereto as defined in Section 2.2):Schedule 1.1
(a) all assets relating to the Business owned by the Company. Such assets include, without limitation, (i) all trade and other accounts receivable and other Indebtedness owing to the Company with respect to the Business and including the benefit of all collateral, security, guaranties, and similar undertakings received or held in connection therewith v));
(the Accounts Receivable); (ii) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transit; (iii) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (ivvi) all machinery, equipment, fixtures furniture, automobiles and furniture used in other vehicles, spare parts and supplies, computers and all related equipment, telephones and all related equipment and all other tangible personal property (it being agreed that between the date of this Agreement and the Closing Date, the parties will prepare and mutually agree upon a specifically identifiable list of such assets and attach such list as Schedule 1.1(a)(vi));
(vii) all rights existing under all contracts, agreements and arrangements to which Seller or any of its Affiliates is a party (it being agreed, for avoidance of doubt, that no maintenance contracts shall be transferred, but that such maintenance contracts shall be subcontracted pursuant to Section 1.7) ("Contracts");
(viii) all rights to the employment of the employees of the Business and preliminarily listed addressed in a separate letter agreement dated on Schedule 2.1 (a final mutually agreed upon list to be provided to Buyer prior to the Closing); (v) all motor vehicles and; (vi) all real estate described on Schedule 3.10 attached hereto, provided, that Buyer shall have 30 days from or about the date hereof to complete its due diligence with respect to such property, between Purchaser and provided, further, that Buyer shall notify Seller (the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period."Letter Agreement");
(bix) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents;
(x) all claims, deposits, prepayments, warranties, guarantees, refunds, causes of action, rights of recovery, rights of set-off and interests rights of the Company in recoupment of every kind and to any Business contracts, including contracts for the purchase of materials, supplies and services and the sale of products and services, equipment leases, and any other contract of the Company relating to the Businessnature;
(xi) all Division Proprietary Rights, including, without limitation, those listed on Schedule 3.15 attached heretoan undivided, one-half joint ownership interest in U.S. Patent No. 5745908;
(c) copies of or access to all of the Company's books, records and other data relating to the Business;
(dxii) all of the Company's goodwillAuthorizations, dealer and customer lists and all other sales and marketing information, and all knowhow, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of the Company in each case, relating to the Business;
(e) all of the Company's interest in patents, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications (including, without limitation, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereof;
(f) all permits, licenses, orders, ratings and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies but excluding any such Authorizations that are held by the Company and relate to the Business, to the extent the same are not transferable;
(gxiii) all rights insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Company Division Assets, but only to causes of actionthe extent Purchaser has assumed the related liabilities with respect thereto pursuant to Section 1.2(a);
(xiv) except as provided in Section 1.1(b)(ii) below, lawsuitsall books, judgmentsrecords, claims ledgers, files, documents, correspondence, lists, studies and demands reports and other printed or written materials;
(xv) all Software Products;
(xvi) all other assets of any kind or nature which would relate to are exclusively used by, or exclusively for the benefit of, the Division in operating the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating are exclusively related to the Business;
(h) [Intentionally omitted]
(i) all present and future insurance proceeds which may be payable under the insurance policies listed on Schedule 3.23 attached hereto to the extent that such proceeds relate to the future loss of asset value of the Purchased Assets;
(j) except for Retained Assets described in Section 2.2 below, all other items of property, real or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit of the Company in each case, used in the Business
(k) Intellectual property and associated html code that is transferable by the Company, as well as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx".
Appears in 1 contract
Samples: Purchase Agreement (Merant PLC)
Purchase of Assets. Upon the terms and subject to the conditions contained in this Agreement, at the Closing (as defined in Section 2.7 below)Closing, the Company Seller shall sell, assign, transfer and convey to Buyer, and Buyer shall purchase, acquire and accept from the CompanySeller, the modem developmentas more specifically set forth on Schedule 1.1, manufacturing, distribution and sales business of the Company as a going concern (the "Business"), including all of the CompanySeller's assets of every kind and description relating to (other than the Excluded Assets) that are used or useful in the Business wherever located and whether or not such assets and properties are reflected on the books and records of Seller or the Business (other than those assets included in the Retained Assets as defined in Section 2.2 below) (the "Transferred Purchased Assets"), free and subject only to the liabilities and obligations clear of the Company which are defined in Section 2.3 (the "Assumed Liabilities")all Liens, other than Permitted Liens. The Transferred Purchased Assets include, without limitation, the following assets and properties (other than those assets included in the Retained Assets as defined in Section 2.2)::
(a) all assets relating to the Business owned by the Company. Such assets includeof Seller's rights under all licenses, without limitationpermits, (i) all trade authorizations, orders, registrations, certificates, approvals, consents and other accounts receivable and other Indebtedness owing to the Company with respect to the Business and including the benefit of all collateralfranchises, security, guaranties, and similar undertakings received or held in connection therewith (the Accounts Receivable); (ii) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transit; (iii) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (iv) all machinery, equipment, fixtures and furniture used in the Business and preliminarily listed on Schedule 2.1 (a final mutually agreed upon list to be provided to Buyer prior to the Closing); (v) all motor vehicles and; (vi) all real estate described on Schedule 3.10 attached hereto, provided, that Buyer shall have 30 days from the date hereof to complete its due diligence with respect to such property, and provided, further, that Buyer shall notify the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment any pending applications for any of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period.foregoing;
(b) all rights and interests of in the Company in and to any Business contracts, including contracts for the purchase of materials, supplies and services and the sale of products and services, equipment leases, and any other contract of the Company relating to the Business, including, without limitation, those listed on Schedule 3.15 attached heretoSeller IP Rights;
(c) copies of any Contract set forth on Schedule 2.11 (i) to which Seller is a party or access which is attributable to all of the Company's books, records and other data relating or related to the Business, including all of Seller's rights under said Contracts, (ii) pursuant to which any of the Purchased Assets are bound or subject, or (iii) involving the Purchased Assets or any insurance policies pursuant to which Seller is a beneficiary or any of the Purchased Assets are insured (together, the "Purchased Contracts");
(d) all of Seller's claims, customer deposits, prepayments, prepaid expenses, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment existing as of the CompanyClosing Date and whether or not recorded in the books and records of Seller;
(e) all (i) of Seller's goodwill, dealer advertiser and customer and supplier lists and all other sales sales, marketing and marketing supplier information, and all knowhow(ii) of Seller's know-how, technology, drawings, engineering specifications, bills of materials, software (iii) of Seller's software, database and related programs used or useful in the conduct of the Business, and (iv) other intangible assets of the Company in each case, relating to the Business;
(e) all of the Company's interest in patents, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications (including, without limitation, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereofSeller;
(f) all permits, licenses, orders, ratings books and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies that are held by the Company and records which relate to the operations and finance of Seller, including books, records, ledgers, files, documents, correspondence, computer discs, computer files, diagrams, construction data, blueprints, instruction manuals, maintenance manuals, reports and similar documents used or useful in connection with the Business, to the extent the same are transferable;
(g) Seller's corporate name and any trade names (current and any former, if applicable) and any and all rights of the Company to causes of action, lawsuits, judgments, claims and demands of any nature which would relate to the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating to the Businessgoodwill associated therewith;
(h) [Intentionally omitted]all of the rights and interests of the Business in, to and under any third party manufacturers' warranties;
(i) all present other assets of Seller of every kind and future insurance proceeds which may be payable under the insurance policies listed on Schedule 3.23 attached hereto to the extent that such proceeds relate to the future loss of asset value of the Purchased Assets;
(j) except for Retained Assets described in Section 2.2 below, all other items of property, real or personaldescription, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit extent used or useful in the conduct of the Company in each case, used in the Business
(k) Intellectual property and associated html code that is transferable by the Company, as well as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx"Business not provided for above.
Appears in 1 contract
Purchase of Assets. Upon On the terms and subject to the conditions ------------------ contained in this Agreement, at the Seller and the Purchaser agree to and shall consummate the following transaction on the Closing (as defined in Section 2.7 below), Date: Purchaser shall purchase from the Company shall sell, assign, transfer and convey to BuyerSeller, and Buyer the Seller shall purchasesell to Purchaser, acquire by appropriate grant deeds, bills of sale, assignments and accept from the Companyother instruments reasonably satisfactory to Purchaser and its counsel, the modem developmentall of Seller's right, manufacturing, distribution title and sales business of the Company as a going concern (the "Business"), including interest in and to all of the Company's assets of every kind assets, properties, rights, titles and description relating to interests owned, leased or used by the Seller in connection with the Business (including indirect and other forms of beneficial ownership) as of the Closing Date, whether tangible, intangible, real or personal and wherever located and by whomever possessed, other than those assets included the Excluded Assets (collectively, the "Purchased Assets") for an ---------------- amount in immediately available funds and, at Purchaser's option, PTGI Notes equal, in the Retained Assets as defined in Section 2.2 below) (aggregate, to the "Transferred Assets")Purchase Price free and clear of all Encumbrances, and subject only to the liabilities Permitted Encumbrances and obligations of the Company which are defined in Section 2.3 (the "Assumed Liabilities"). The Transferred Purchased Assets shall include, without limitation, the following assets and properties (other than those assets included in the Retained Assets as defined in Section 2.2)::
(a) all the tangible and intangible assets relating to the Business owned by the Company. Such assets includecategories 1, without limitation2, 3, 4 (iexcept for category 4b (Portland Switch Site) all trade and other accounts receivable 4c (NPC IRU)), 5 and other Indebtedness owing to the Company with respect to the Business and including the benefit 6(f) of all collateral, security, guaranties, and similar undertakings received or held in connection therewith (the Accounts Receivable); (ii) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transit; (iii) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (iv) all machinery, equipment, fixtures and furniture used in the Business and preliminarily listed on Schedule 2.1 (a final mutually agreed upon list to be provided to Buyer prior to the Closing); (v) all motor vehicles and; (vi) all real estate described on Schedule 3.10 attached hereto, provided, that Buyer shall have 30 days from the date hereof to complete its due diligence with respect to such property, and provided, further, that Buyer shall notify the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period1.
(b1.1(a) all rights and interests of the Company in and to any Business contracts, including contracts for the purchase of materials, supplies and services hereto and the sale of products and services, equipment leases, and any other contract of the Company relating to the Business, including, without limitation, those listed on Schedule 3.15 detailed schedules attached heretothereto ----------------- as Annex A;
(c) copies of or access to all of the Company's books, records and other data relating to the Business;
(d) all of the Company's goodwill, dealer and customer lists and all other sales and marketing information, and all knowhow, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of the Company in each case, relating to the Business;
(e) all of the Company's interest in patents, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications (including, without limitation, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereof;
(f) all permits, licenses, orders, ratings and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies that are held by the Company and relate to the Business, to the extent the same are transferable;
(g) all rights of the Company to causes of action, lawsuits, judgments, claims and demands of any nature which would relate to the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating to the Business;
(h) [Intentionally omitted]
(i) all present and future insurance proceeds which may be payable under the insurance policies listed on Schedule 3.23 attached hereto to the extent that such proceeds relate to the future loss of asset value of the Purchased Assets;
(j) except for Retained Assets described in Section 2.2 below, all other items of property, real or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit of the Company in each case, used in the Business
(k) Intellectual property and associated html code that is transferable by the Company, as well as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx".
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (Primus Telecommunications Group Inc)
Purchase of Assets. Upon (a) On the terms and subject to the conditions contained in this Agreement, at the Closing (as defined in Section 2.7 below)Closing, Buyer shall purchase, and the Company and the Subsidiary shall sell, convey, assign, transfer and convey deliver to Buyer, free and Buyer shall purchaseclear of any Liens by appropriate instruments of conveyance reasonably satisfactory to Buyer, acquire all assets, properties, rights, titles and accept from the Company, the modem development, manufacturing, distribution and sales business of the Company as a going concern (the "Business"), including all of the Company's assets interests of every kind and description relating to the Business (other than those assets included in the Retained Assets as defined in Section 2.2 below) (the "Transferred Assets")or nature owned, and subject only to the liabilities and obligations of leased, licensed or otherwise held by the Company which are defined in Section 2.3 (or the "Assumed Liabilities"). The Transferred Assets includeSubsidiary, whether tangible, intangible, real or personal and wherever located, including, without limitation, all of the following assets and properties assets, but excluding all Excluded Assets (other than those assets included in the Retained Assets as defined in Section 2.2“Purchased Assets”):
(ai) the Business as a going concern;
(ii) the goodwill of the Company and the Subsidiary;
(iii) all assets relating to the Business owned by the Company. Such assets includebilled and unbilled accounts receivable and all correspondence with respect thereto, including, without limitation, (i) all trade accounts receivable, notes receivable from customers, vendor credits and all other accounts receivable and other Indebtedness owing to the Company obligations from customers with respect to the Business and including the benefit sales of all collateralgoods or services, security, guaranties, and similar undertakings received whether or held in connection therewith not evidenced by a note;
(the Accounts Receivable); (iiiv) all inventories with respect to the Business wherever locatedprepayments, including raw materials, goods consigned to vendors prepaid expenses and other assets;
(v) all interests in leased or subcontractorssubleased real estate listed on Schedule 2.1(a)(v);
(vi) all inventories, work in process, finished goods progress and goods in transit; supplies;
(iii) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (ivvii) all machinery, equipment, spare parts and supplies, computers and all related equipment and fixtures and furniture used in the Business all other tangible personal property, including, but not limited to, machinery, equipment, spare parts and preliminarily listed supplies, computers and all related equipment and fixtures and all other tangible personal property set forth on Schedule 2.1 2.1(a)(vii);
(a final mutually agreed upon list to be provided to Buyer prior to the Closing); (vviii) all motor vehicles and; (vi) all real estate described on Schedule 3.10 attached hereto, provided, that Buyer shall have 30 days from the date hereof to complete its due diligence with respect to such property, and provided, further, that Buyer shall notify the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period.furniture;
(bix) all rights existing under all Contracts (except Excluded Contracts) to which the Company or the Subsidiary is a party (collectively, the “Purchased Contracts”), including, without limitation, each Contract set forth on Schedule 2.1(a)(ix);
(x) all lists and interests records pertaining to customer accounts (whether past or current), suppliers, distributors, manufacturers and agents;
(xi) all claims, deposits, prepayments, warranties, guarantees, refunds, causes of action, rights of recovery, rights of set-off and rights of recoupment of every kind and nature, except for any of the Company in foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(xii) all Permits and to any Business contractsapplications therefor (including, including contracts for without limitation, all submissions made and clearances obtained under Section 510(k) of the purchase of materialsFederal Food, supplies and services and the sale of products and services, equipment leasesDrug, and any Cosmetic Act of 1938, as amended (the “FDCA”), and all related correspondence or records of communication with the United States Food and Drug Administration (the “FDA”) before and after clearance, and all other contract similar regulatory submissions, permits, approvals, orders and related clinical and non-clinical data supporting the marketing of the Company relating to the Businessproduct), including, without limitation, those listed on Schedule 3.15 attached hereto2.1(a)(xii);
(cxiii) copies all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or access to all of the Company's books, records and other data relating loss to the BusinessPurchased Assets;
(dxiv) except as provided in Section 2.1(b)(ii) below and to the extent they relate to Excluded Assets or Excluded Liabilities, all of the Company's goodwillbooks, dealer and customer lists and all other sales records, ledgers, files, documents, correspondence, lists, studies, reports, promotional and marketing informationmaterials, and all knowhow, technology, drawings, engineering specifications, bills of other printed or written materials, software and other intangible assets of the Company in each case, relating to the Business;
(exv) except as prohibited by applicable law, all personnel and other records related to the Transferred Employees;
(xvi) all of the Company's interest in patentsCompany Intellectual Property Assets, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications (including, without limitation, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereofProducts;
(f) all permits, licenses, orders, ratings and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies that are held by the Company and relate to the Business, to the extent the same are transferable;
(gxvii) all rights of the Company to causes of actionor the Subsidiary under any confidentiality, lawsuitsnon-competition, judgments, claims invention or similar agreements with current or former employees and demands of any nature which would relate independent contractors who provided services to the Business Company or constitute counterclaims, rights the Subsidiary and/or participated in the development of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating to the Business;
(h) [Intentionally omitted]
(i) all present and future insurance proceeds which may be payable under the insurance policies listed on Schedule 3.23 attached hereto to the extent that such proceeds relate to the future loss of asset value of Company Intellectual Property Assets included in the Purchased Assets;
(jxviii) except for Retained Assets described in Section 2.2 belowall certificates of deposit listed on Schedule 2.1(a)(xviii);
(xix) all refunds from insurance policies listed on Schedule 2.1(a)(xix), which insurance policies shall be canceled by the Company at the Closing; and
(xx) all other items assets of property, real any kind or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit nature of the Company in each caseor the Subsidiary, used in other than the Business
(k) Intellectual property and associated html code that is transferable by the Company, as well as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx"Excluded Assets.
Appears in 1 contract
Purchase of Assets. Upon (a) On the terms and subject to the conditions contained in this Agreement, at on the Closing (as defined in Section 2.7 below)Date, the Company Purchaser or one or more of its Affiliates shall purchase, and Seller or one or more of its Affiliates shall sell, convey, assign, transfer and convey deliver, free and clear of all Indebtedness and Encumbrances (except for any Permitted Encumbrances) by appropriate instruments of conveyance reasonably satisfactory to BuyerPurchaser, all assets, properties, rights, titles and Buyer shall purchaseinterests of every kind or nature owned, acquire leased, licensed or otherwise held by Seller or its Affiliates (including indirect and accept from other forms of beneficial ownership) as of the CompanyClosing Date, whether tangible, intangible, real or personal and wherever located, which are exclusively used by, or exclusively for the benefit of, the modem development, manufacturing, distribution and sales business of Division in operating the Company as a going concern (Business or are exclusively related to the "Business"), including all of the Company's following assets of every kind and description relating which are exclusively used by, or exclusively for the benefit of, the Division in operating the Business or are exclusively related to the Business Business, but excluding all Excluded Assets (nothing herein shall be deemed to require conveyance of any assets that are used by or in any other than those business of Seller, which assets included in may be subject to the Retained Assets as defined in Section 2.2 belowTransition Services Agreement or one or more other shared facility agreements) (all such assets, whether to be conveyed directly by asset transfer or indirectly by transfer of capital stock of the Acquired Subsidiary, hereinafter referred to as the "Transferred Division Assets")):
(i) all accounts receivable and all correspondence with respect thereto, and subject only to the liabilities and obligations of the Company which are defined in Section 2.3 (the "Assumed Liabilities"). The Transferred Assets include, including without limitation, all trade accounts receivable, notes receivable from customers, vendor credits and accounts receivable from employees and all other obligations from customers with respect to sales of goods or services, whether or not evidenced by a note;
(ii) all prepayments, prepaid expenses and other assets (it being agreed that between the following date of this Agreement and the Closing Date, the parties will prepare and mutually agree upon a specifically identifiable list of such assets and properties attach such list hereto as Schedule 1.1(a)(ii));
(other than those assets included iii) all Acquired Stock;
(iv) all interests in leased or subleased real estate set forth on Schedule 1.1(a)(iv);
(v) all inventories, work in progress and supplies (it being agreed that between the Retained Assets as defined in Section 2.2):date of this Agreement and the Closing Date, the parties will prepare and
(a) all assets relating to the Business owned by the Company. Such assets include, without limitation, (i) all trade and other accounts receivable and other Indebtedness owing to the Company with respect to the Business and including the benefit of all collateral, security, guaranties, and similar undertakings received or held in connection therewith v));
(the Accounts Receivable); (ii) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transit; (iii) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (ivvi) all machinery, equipment, fixtures furniture, automobiles and furniture used in other vehicles, spare parts and supplies, computers and all related equipment, telephones and all related equipment and all other tangible personal property (it being agreed that between the date of this Agreement and the Closing Date, the parties will prepare and mutually agree upon a specifically identifiable list of such assets and attach such list as Schedule 1.1(a)(vi));
(vii) all rights existing under all contracts, agreements and arrangements to which Seller or any of its Affiliates is a party (it being agreed, for avoidance of doubt, that no maintenance contracts shall be transferred, but that such maintenance contracts shall be subcontracted pursuant to Section 1.7) ("Contracts");
(viii) all rights to the employment of the employees of the Business and preliminarily listed addressed in a separate letter agreement dated on Schedule 2.1 (a final mutually agreed upon list to be provided to Buyer prior to the Closing); (v) all motor vehicles and; (vi) all real estate described on Schedule 3.10 attached hereto, provided, that Buyer shall have 30 days from or about the date hereof to complete its due diligence with respect to such property, between Purchaser and provided, further, that Buyer shall notify Seller (the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period.
(b) all rights and interests of the Company in and to any Business contracts, including contracts for the purchase of materials, supplies and services and the sale of products and services, equipment leases, and any other contract of the Company relating to the Business, including, without limitation, those listed on Schedule 3.15 attached hereto"Letter Agreement");
(cix) copies of all lists and records pertaining to customer accounts (whether past or access to all of the Company's bookscurrent), records suppliers, distributors, personnel and other data relating to the Businessagents;
(dx) all claims, deposits, prepayments, warranties, guarantees, refunds, causes of the Company's goodwillaction, dealer rights of recovery, rights of set-off and customer lists rights of recoupment of every kind and all other sales and marketing information, and all knowhow, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of the Company in each case, relating to the Businessnature;
(exi) all of the Company's interest in patents, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications (including, without limitation, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereofDivision Proprietary Rights;
(fxii) all permitsAuthorizations, licenses, orders, ratings and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies but excluding any such Authorizations that are held by the Company and relate to the Business, to the extent the same are not transferable;
(gxiii) all rights insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Division Assets, but only to the extent Purchaser has assumed the related liabilities with respect thereto pursuant to Section 1.2(a);
(xiv) except as provided in Section 1.1(b)(ii) below, all books, records, ledgers, files, documents, correspondence, lists, studies and reports and other printed or written materials;
(xv) all Software Products;
(xvi) cash in an amount equal to the estimated balance of the Company deferred maintenance revenue liability of the Business as of the Closing Date (as determined by reference to causes the determination of actionEstimated Tangible Net Book Value made pursuant to Section 1.4(a)), lawsuitsmultiplied by 29%, judgmentsthe projected percentage cost to service the related maintenance revenue contracts, claims and demands which cash will be transferred directly to Purchaser ("Maintenance Cash"); and
(xvii) all other assets of any kind or nature which would relate to are exclusively used by, or exclusively for the benefit of, the Division in operating the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating are exclusively related to the Business;
(h) [Intentionally omitted]
(i) all present and future insurance proceeds which may be payable under the insurance policies listed on Schedule 3.23 attached hereto to the extent that such proceeds relate to the future loss of asset value of the Purchased Assets;
(j) except for Retained Assets described in Section 2.2 below, all other items of property, real or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit of the Company in each case, used in the Business
(k) Intellectual property and associated html code that is transferable by the Company, as well as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx".
Appears in 1 contract
Samples: Purchase Agreement (Merant PLC)
Purchase of Assets. Upon Subject to the terms and subject to conditions hereof and in reliance upon the conditions contained in this Agreementrepresentations, at warranties, covenants and agreements herein contained, on the Closing Date (as defined in Section 2.7 belowArticle 2 hereof), the Company shall Seller agrees to sell, assigntransfer, transfer convey, assign and convey deliver to Buyer, and Buyer shall agrees to purchase, acquire and accept from the CompanySeller, the modem development, manufacturing, distribution and sales business Business of the Company Seller as a going concern including all the assets, properties, claims and rights of Seller used in or pertaining to the Business, of every type and description, wherever located, tangible and intangible, vested or unvested, contingent or otherwise, as the same shall exist on the Closing Date, whether or not recorded on the books and records of Seller and whether or not described herein or in any of the exhibits or schedules delivered or to be delivered to Buyer hereunder (collectively the "BusinessPurchased Assets"), including all of the Company's assets of every kind and description relating to the Business (other than those assets included in the Retained Assets as defined in Section 2.2 below) (the "Transferred Assets"), and subject only expressly excluded pursuant to the liabilities provisions of Section 1.02 hereof. Such sale and obligations transfer to Buyer shall be free and clear of all Liens (as hereinafter defined). Without in any way limiting the generality of the Company which are defined in Section 2.3 (the "Assumed Liabilities"). The Transferred Assets include, without limitationforegoing, the following assets and properties (other than those assets included in Purchased Assets include the Retained Assets as defined in Section 2.2):following:
(a) all All fixed assets relating to the Business owned by the Company. Such assets include, without limitation, (i) all trade and other accounts receivable and other Indebtedness owing to the Company with respect to the Business and including the benefit of all collateral, security, guaranties, and similar undertakings received or held in connection therewith (the Accounts Receivable); (ii) all inventories with respect to the Business wherever locatedSeller, including raw materialsreal property, goods consigned buildings and improvements to vendors real property, furniture, furnishings, fixtures, leasehold improvements, office or subcontractors, work in process, finished goods and goods in transit; (iii) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (iv) all machinery, other equipment, fixtures vehicles, all machinery and furniture used in the Business and preliminarily listed equipment of Seller, including those items referred to on Schedule 2.1 (a final mutually agreed upon list to be provided to Buyer prior to the Closing); (vExhibit 1.01(a) all motor vehicles and; (vi) all real estate described on Schedule 3.10 attached annexed hereto, provided, that Buyer shall have 30 days from the date hereof to complete its due diligence with respect to such property, and provided, further, that Buyer shall notify the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period.
(b) all rights All inventory and interests supplies of the Company in and to any Business contractsSeller, including contracts for the purchase of materials, supplies and services and the sale of products and services, equipment leases, and any other contract of the Company relating to the Business, including, without limitation, those listed on Schedule 3.15 attached hereto;goods in transit.
(c) copies The leasehold interests of or access to all of the Company's books, records and other data relating to the Business;
(d) all of the Company's goodwill, dealer and customer lists and all other sales and marketing information, and all knowhow, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of the Company in each case, relating to the Business;
(e) all of the Company's interest in patents, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications (including, without limitation, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereof;
(f) all permits, licenses, orders, ratings and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies that are held by the Company and relate to the Business, to the extent the same are transferable;
(g) all rights of the Company to causes of action, lawsuits, judgments, claims and demands of any nature which would relate to the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating to the Business;
(h) [Intentionally omitted]
(i) all present and future insurance proceeds which may be payable under the insurance policies listed Seller described on Schedule 3.23 attached hereto to the extent that such proceeds relate to the future loss of asset value of the Purchased Assets;
(j) except for Retained Assets described in Section 2.2 below, all other items of property, real or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit of the Company in each case, used in the Business
(k) Intellectual property and associated html code that is transferable by the Company, as well as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx".Exhibit 1.01
Appears in 1 contract
Purchase of Assets. Upon (a) On the terms and subject to the conditions contained set forth in this AgreementAgreement and except as provided in Section 1.2, at on the Closing Date: (as defined in Section 2.7 below)i) Tequila Herradura will sell, the Company shall selltransfer, assign, transfer convey and convey deliver to BuyerBFC, and Buyer shall BFC will purchase, acquire and accept from the CompanyTequila Herradura, the modem developmentall of Tequila Herradura's right, manufacturing, distribution title and sales business interest in and to all of the Company Trademarks, as a going concern and to the extent existing on the Closing; and (ii) Sellers will sell, transfer, assign, convey and deliver to Buyer, and Buyer will purchase, acquire and accept from Sellers, all of Sellers' and their Affiliates' right, title and interest in and to all of the assets, properties and rights owned or used by Sellers or their Affiliates or useful in the conduct of the Business (excluding all of the Trademarks addressed in clause (i) of this sentence), as and to the extent existing at the Closing (such assets, properties and rights and the Trademarks are hereinafter collectively referred to as the "BusinessASSETS"), including in each case, free and clear of all Liens other than, in the case of Assets other than the Outstanding Equity Securities of the Company's assets of every kind and description relating to the Business (other than those assets included Purchased Subsidiaries, Permitted Liens, and, in the Retained Assets as defined in Section 2.2 below) (the "Transferred Assets"), and subject only to the liabilities and obligations case of the Company which are defined in Section 2.3 (the "Assumed Liabilities"). The Transferred Assets include, without limitationOwned Real Properties, the following assets and properties (other than those assets included in the Retained Assets as defined in Section 2.2):
(a) all assets relating to the Business owned by the Company. Such assets include, without limitation, (i) all trade and other accounts receivable and other Indebtedness owing to the Company with respect to the Business and including the benefit of all collateral, security, guaranties, and similar undertakings received or held in connection therewith (the Accounts Receivable); (ii) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transit; (iii) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (iv) all machinery, equipment, fixtures and furniture used in the Business and preliminarily listed on Schedule 2.1 (a final mutually agreed upon list to be provided to Buyer prior to the Closing); (v) all motor vehicles and; (vi) all real estate described on Schedule 3.10 attached hereto, provided, that Buyer shall have 30 days from the date hereof to complete its due diligence with respect to such property, and provided, further, that Buyer shall notify the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day periodReal Property Encumbrances.
(b) all rights and interests Without limitation of the Company foregoing, but except as provided in and to any Business contracts, including contracts for the purchase of materials, supplies and services and the sale of products and services, equipment leases, and any other contract of the Company relating to the Business, including, without limitation, those listed on Schedule 3.15 attached hereto;
(c) copies of or access to all of the Company's books, records and other data relating to the Business;
(d) all of the Company's goodwill, dealer and customer lists and all other sales and marketing information, and all knowhow, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of the Company in each case, relating to the Business;
(e) all of the Company's interest in patents, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications (including, without limitationSection 1.2, the exclusive right to use Assets include the names "Global Village" following as and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereof;
(f) all permits, licenses, orders, ratings and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies that are held by the Company and relate to the Business, to the extent existing on the same are transferable;
(g) all rights of the Company to causes of action, lawsuits, judgments, claims and demands of any nature which would relate to the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating to the Business;
(h) [Intentionally omitted]Closing:
(i) OWNED REAL PROPERTY. The Owned Real Property described on SCHEDULE 4.5(C)(I), together with all present buildings, facilities and future insurance proceeds which may be payable under the insurance policies listed on Schedule 3.23 attached hereto to the extent that such proceeds relate to the future loss of asset value of the Purchased Assetsother structures, fixtures and improvements thereon, currently or hereafter located thereon, all privileges, easements and appurtenances appertaining thereto;
(jii) except for Retained Assets described in Section 2.2 belowREAL PROPERTY LEASES. To the extent assignable, all other items of property, real or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit of the Company in each case, used in the Business
(k) Intellectual property and associated html code that is transferable by the Company, as well as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx".Real Property Leases listed on SCHEDULE 4.5(C)(II);
Appears in 1 contract
Purchase of Assets. Upon (a) Each of the Initial Sellers hereby sells, assigns, transfers and conveys to the Purchaser on each Purchase Date on the terms and subject to the conditions contained in this Agreementspecifically set forth herein, at the Closing (as defined in Section 2.7 below), the Company shall sell, assign, transfer and convey to Buyer, and Buyer shall purchase, acquire and accept from the Company, the modem development, manufacturing, distribution and sales business of the Company as a going concern (the "Business"), including all of the Company's assets of every kind its right, title and description relating interest, in, to the Business (other than those assets included in the Retained Assets as defined in Section 2.2 below) (the "Transferred Assets"), and subject only to the liabilities and obligations of the Company which are defined in Section 2.3 (the "Assumed Liabilities"). The Transferred Assets include, without limitation, the following assets and properties (other than those assets included in the Retained Assets as defined in Section 2.2):
(a) all assets relating to the Business owned by the Company. Such assets include, without limitation, under (i) all trade rights to receive food and other accounts receivable and other Indebtedness owing to the Company with respect to the Business and including the benefit of all collateral, security, guaranties, and similar undertakings received beverages ("MEALS") or held in connection therewith Meal credits (the Accounts Receivable)"CREDITS") purchased by any Subsidiary of Transmedia from any of the Assigned Restaurants pursuant to any Contract; (ii) all inventories rights of the Initial Sellers to, in and under any Contract with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transitan Assigned Restaurant; (iii) all prepaid expensesrights of the Initial Sellers, deposits whether now existing or hereafter arising, under the Cardmember Agreements to authorize charges to and rights to refunds recover payments from customers and suppliers Cardmembers' Credit Card Accounts in connection with respect to the Businesspurchase of Meals by any Cardmember at any Assigned Restaurant (the "RECEIVABLES"); (iv) all machinery, equipment, fixtures and furniture used in the Business and preliminarily listed on Schedule 2.1 (a final mutually agreed upon list to be provided to Buyer prior to the Closing)Recoveries; (v) all motor vehicles andother accounts, contract rights, chattel paper, instruments, Contract Files, general intangibles and other obligations of any Restaurant with respect to any of the foregoing, now or hereafter existing, whether or not arising out of or in connection with the sale or lease of goods or the rendering of services, and including without limitation, the right to payment of any Receivables, Recoveries, Credits or other obligations of a Restaurant or any Credit Card Company with respect to any of the foregoing; (vi) all real estate described rights in and to all security agreements and other contracts securing or otherwise relating to any of the foregoing; (vii) al1 guarantees, insurance and other agreements or arrangements of whatever character from time to time supporting payment of any of the foregoing; ((i), (ii), (iii), (iv), (v), (vi) and (vii) are collectively referred to as the "ASSETS"); and (viii) cash in the amount of the Reserve Amount, if any; and (ix) on the initial Purchase Date, all of Transmedia Service Company Inc.'s right title and interest to the tradenames, trademarks and service marks listed on Schedule 3.10 attached II hereto, provided, that Buyer shall have 30 days from the date hereof to complete its due diligence with respect to such property, and provided, further, that Buyer shall notify the Company of its intention to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment of the leases for such premises or refuse to accept the real estate identified on Schedule 3.10 prior to the end of such 30-day period.
(b) On each Purchase Date, all rights and interests of the Company Initial Sellers' right, title and interest in and to any Business contracts, including contracts for the purchase of materials, supplies and services and the sale of products and services, equipment leases, and any other contract of the Company all newly created Assets relating to the BusinessAssigned Restaurants shall be sold, includingassigned, without limitation, those listed transferred and conveyed to the Purchaser upon the delivery to the Collateral Agent (either electronically or on Schedule 3.15 attached hereto;paper) of the Daily Report on such date in accordance with Section 6.01.
(c) copies All sales of Assets by the Initial Sellers hereunder shall be without recourse to, or access to all representation or warranty of any kind (express or implied) by, Transmedia or the Company's books, records and other data relating to the Business;Initial Sellers except as otherwise specifically provided herein.
(d) all It is understood and agreed that no purchases of Assets hereunder shall occur after the Company's goodwill, dealer and customer lists and all other sales and marketing information, and all knowhow, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of the Company in each case, relating to the Business;Purchase Termination Date.
(e) On each Purchase Date, the Initial Seller shall transmit to the Trustee via electronic or paper transmission, or by such other means as may be agreeable to the Trustee, the Daily Report which shall include the list of Contracts and Cardmember Agreements sold to the Purchaser. The electronic delivery by the Initial Seller or made on the Initial Seller's behalf of such Daily Report shall be deemed conclusive evidence of an assignment by the Initial Seller to the Purchaser of all of the CompanyInitial Seller's right, title and interest in patents, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications (including, without limitationto the Cardmember Agreements and Contracts listed in such Daily Report. On each Note Payment Date, the exclusive right to use Initial Seller and the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed Purchaser will conf~ in Schedule 3.13 attached hereto, in each case relating writing the list of Assets sold to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereof;
(f) all permits, licenses, orders, ratings and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies that are held Purchaser pursuant to this Agreement by the Company and relate delivery to the Business, to Collateral Agent of a Confirmation of Sale and Assignment in the extent the same are transferable;
(g) all rights of the Company to causes of action, lawsuits, judgments, claims and demands of any nature which would relate to the Business or constitute counterclaims, rights of setoff, and affirmative defenses to any claims brought against Buyer by third parties relating to the Business;
(h) [Intentionally omitted]
(i) all present and future insurance proceeds which may be payable under the insurance policies listed on Schedule 3.23 form attached hereto to the extent that such proceeds relate to the future loss of asset value of the Purchased Assets;
(j) except for Retained Assets described in Section 2.2 below, all other items of property, real or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit of the Company in each case, used in the Business
(k) Intellectual property and associated html code that is transferable by the Company, as well as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx".Exhibit D.
Appears in 1 contract
Purchase of Assets. Upon (a) On the terms and subject to the conditions contained in this Agreement, at on the Closing Date, Buyer shall (as defined in Section 2.7 below)or shall cause one or more of its Buyer Affiliates to) purchase, and Seller shall, and shall cause the Company shall Selling Affiliates to, sell, convey, assign, transfer and convey to Buyerdeliver, free and Buyer shall purchaseclear of all Liens (except for any Permitted Liens), acquire all of Seller’s and accept from the CompanySelling Affiliates’ right, the modem development, manufacturing, distribution title and sales business interest as of the Company as a going concern Closing Date in the following assets, properties and rights (except for Excluded Assets) that are primarily (except to the extent noted below) related to the Products or primarily used in connection with the business derived through exploitation or sale of the Products (the "Business")“Purchased Assets”):
(i) all prepayments, prepaid expenses and other prepaid assets made by Seller or any Selling Affiliate under any Purchased Contract (or under any Excluded Contract to the extent attributable or related to any Product and not included in the calculation of the Deferred Maintenance Adjustment, including those items listed on Schedule 2.1(a)(i));
(ii) all packing materials, labels and supplies of the Company's assets of every kind and description or relating to the Business Products, and all inventories of hardcopies of Products, Product related materials and shrink wrap goods (whether in finished goods condition or otherwise) wherever located;
(iii) (a) lease agreements for those automobiles and other than those assets included in the Retained Assets as defined in Section 2.2 belowvehicles set forth on Schedule 2.1(a)(iii)(a) (the "Transferred Assets"“Vehicle Leases”), (b) all computers, servers and subject all related equipment (including all laptops, desktops and associated computer hardware, including any external storage devices and storage media) (collectively, “Computer Devices”) and software loaded thereon, as set forth on Schedule 2.1(a)(iii)(b), (c) to the extent assignable, rights to all telephone numbers used exclusively in the business of Seller relating to the Products, and (d) cellular telephones (but only to the liabilities extent transferable) and obligations laptop or desk Computer Devices that are used by or held for use by any of the Company which are defined in Section 2.3 Scheduled Employees (e.g., personal property associated with the "Assumed Liabilities"Scheduled Employees). The Transferred Assets include, without limitation, the following assets and properties (other than those assets included in the Retained Assets as defined in Section 2.2):;
(a) all assets benefits and rights, other than license fees, (including rights in respect of non-performance or breach) under each Contract (w) exclusively relating to the Business owned by Products or the Company. Such assets include, without limitationbusiness of exploitation or sale of the Products, (ix) set forth on Schedule 2.1(a)(iv)(a), (y) related to FileAID C/S when sold in conjunction with the Products, except as provided in Section 2.2(b)(ii), or (z) constituting a Resulting Exclusive Contract (as defined below) (each, a “Fully Assigned Contract”), and (b) all trade benefits and rights, other accounts receivable and other Indebtedness owing than license fees, (including rights in respect of non-performance or breach) to the Company with respect extent such benefits and rights relate to the Business Products or the business of exploitation or sale of the Products under each Contract that is not a Fully Assigned Contract and including that produces any of the benefit of all collateral, security, guaranties, revenue included in Seller’s and similar undertakings received or held in connection therewith (the Accounts Receivable); (ii) all inventories with respect to the Business wherever located, including raw materials, goods consigned to vendors or subcontractors, work in process, finished goods and goods in transit; (iii) all prepaid expenses, deposits and rights to refunds from customers and suppliers with respect to the Business; (iv) all machinery, equipment, fixtures and furniture used in the Business and preliminarily listed its Affiliates’ revenue amounts set forth on Schedule 2.1 2.1(a)(iv)(b) (each, a final mutually agreed upon list to be provided to Buyer prior to “Partially Assigned Contract” and collectively, together with Fully Assigned Contracts, the Closing“Purchased Contracts”); ;
(v) all motor vehicles and; lists and records pertaining to customer accounts (whether past, present or under development), sale order history, customer support, development issue tracking, sales plan opportunities, sales pipeline, licensing data, suppliers, personnel and agents;
(vi) all real estate described claims, deposits, warranties, guarantees, refunds (other than Tax refunds), causes of action, rights of recovery, rights of set-off and rights of recoupment of every kind and nature;
(vii) all Proprietary Rights and interests therein, including (a) the patents, patent applications and patent disclosures set forth on Schedule 3.10 attached hereto2.1(a)(vii)(a); (b) the trademark registrations and trademark applications set forth on Schedule 2.1(a)(vii)(b), providedas well as any goodwill of Seller and the Selling Affiliates to the extent related to the foregoing; (c) all computer software set forth on Schedule 2.1(a)(vii)(c) (collectively, that Buyer shall have 30 days from the date hereof to complete its due diligence “Purchased Proprietary Rights”);
(viii) all insurance, warranty and condemnation net proceeds received before, on or after the Closing Date with respect to such propertydamage, and provided, further, that Buyer shall notify the Company non-conformance of its intention or loss to sublease the space currently occupied by the Company upon the same terms as currently paid by the Company, receive an assignment any of the leases for such premises Purchased Assets that occurred before, on or refuse to accept after the real estate identified on Schedule 3.10 prior Closing Date to the end of extent not already expended to remediate such 30damage or non-day period.
(b) all rights and interests of the Company in and to any Business contracts, including contracts for the purchase of materials, supplies and services and the sale of products and services, equipment leases, and any other contract of the Company relating to the Business, including, without limitation, those listed on Schedule 3.15 attached heretoconformance;
(cix) except as provided in Section 2.1(b) below, and to the extent related to the Products (with redaction of non-Product-related information), copies of or access to all of the Company's books, records records, ledgers, files (including all financial, business and marketing plans and information), documents, mail, correspondence, lists, studies and reports and other data relating to the Business;
printed or written materials (d) including all of the Company's goodwilladvertising, dealer marketing and customer lists and all other sales and marketing informationpromotional materials), and all knowhow, technology, drawings, engineering specifications, bills of materials, software and other intangible assets of the Company in each case, relating to the Business;whether evidenced in writing or electronic data; and
(ex) all of the Company's interest in patents, patent applications, proprietary designs, copyrights, tradenames, servicemarks, trademarks and trademark applications data extracts created by Seller from all relevant systems (including, without limitationbut not limited to, the exclusive right to use the names "Global Village" and "Teleport" and all variants thereof), and all patents, trademarks, servicemarks, proprietary designs, trade names, assumed names and copyrights listed in Schedule 3.13 attached hereto, in each case relating to the Business and together with the goodwill appurtenant thereto, all federal, state, local and foreign registrations thereof, if applicable, all common law rights thereto, and all claims or causes of action for infringement thereof;
personnel (f) all permits, licenses, orders, ratings and approvals of all federal, state, local or foreign governmental or regulatory authorities or industrial bodies that are held by the Company and relate to the Business, to the extent the same are transferable;
(g) all rights of the Company to causes of actionpermitted under applicable law), lawsuitsfinance, judgments, claims and demands of any nature which would relate to the Business or constitute counterclaims, rights of setoffsales, and affirmative defenses payroll), in formats reasonably satisfactory to any claims brought against Buyer by third parties relating to the Business;
(h) [Intentionally omitted]
(i) all present Buyer, and future insurance proceeds which may be payable under the insurance policies listed on Schedule 3.23 attached hereto to the extent details of current business processes and systems in a format that such proceeds relate to the future loss of asset value of the Purchased Assets;
(j) except for Retained Assets described in Section 2.2 below, all other items of property, real or personal, tangible or intangible, including, without limitation, all restrictive and negative covenant agreements with employees and others, including, without limitation, nondisclosure agreements, computer programs, tapes, discs and timesharing files, owned, used by or accruing to the benefit of the Company in each case, used in the Business
(k) Intellectual property and associated html code that is transferable by the Company, as well as the exclusive rights to operate the Global Village website located at "www.xxxxxxxxxxxxx.xxx", "www.xxxxxxxxxxxx.xxx" xxd "www.xxxxxxxxxxxxxxxxxx.xxx"Seller can reasonably provide.
Appears in 1 contract
