Common use of Purchased Assets; Excluded Assets Clause in Contracts

Purchased Assets; Excluded Assets. (a) Upon the terms and subject to the conditions of this Agreement, Seller hereby sells, assigns, conveys, transfers, and delivers to Purchaser free and clear of all Liens (other than Permitted Liens), and Purchaser hereby purchases from Seller, all of the right, title, and interest of Seller in and to all of the assets, properties, and rights of Seller relating to or used by Seller in the conduct of the Business, directly or indirectly, in whole or in part, of every type and description, real, personal, or mixed, tangible and intangible, wherever located and whether or not reflected on the books of Seller, including, without limitation, the following, as the same exists as of the date hereof (in all cases, other than the Excluded Assets): (i) all tangible personal property and interests therein owned or leased by Seller, including all Equipment, inventory, training materials and the like, that are related to or used by Seller in the conduct of the Business, wherever located, and any assignable warranties of third parties with respect thereto and rights to refunds or rebates in connection therewith; (ii) all of Seller’s right, title, and interest in, to and under (A) any purchase order or any Customer Contract providing for the delivery or provision of any Products after the Closing Date (for the avoidance of doubt, Purchaser is not assuming the underlying Customer Contract unless specifically listed on Schedule 1.1(a)(ii)) and (B) the Contracts set forth on Schedule 1.1(a)(ii) (the “Assumed Contracts”) and, in each case, all rights (including rights of refund and offset), privileges, deposits, claims, causes of action, and options relating or pertaining thereto; (iii) all Accounts Receivable; (iv) all Cash (except such Cash as reasonably required by the Assignee to wind down and dissolve the Seller’s Business in an amount not to exceed $25,000.00), prepaid expenses, deposits, and credits and rights relating to or utilized in the Business; (v) all Business Intellectual Property and Business software, together with all income, royalties, damages, and payments due or payable at the Closing or thereafter (including damages and payments for past or future infringements or misappropriations thereof) with respect thereto, the right to sue and recover for past infringements or misappropriations thereof, any corresponding rights that, now or hereafter, may be secured throughout the world and all copies and tangible embodiments of any such Intellectual Property, including, without limitation, all of Seller’s patents and patent applications set forth in the Patent Assignment Agreement; (vi) all of Seller’s membership or ownership interests in Algaeon Ventures, which is being assigned to Purchaser under the Assignment of Membership Interest Agreement. (vii) all choses in action, causes of action, claims, and demands of Seller that are related to the Business (except for those causes of action that are related exclusively to the Excluded Assets), whether known or unknown, matured or unmatured, accrued or contingent, including rights of recovery, rights of warranty and indemnity, rights of set-off, and rights of recoupment; (viii) all advertising, marketing, and promotional materials and all other printed, written, or electronic materials, including any website content and telephone numbers that are owned or used by Seller in the conduct of the Business; (ix) all existing data, databases, books, records, correspondence, records of sales, customer and vendor lists, information related to accounts, personnel and referral sources, customers and prospective customers, billing records, files, papers and all manuals, drawings, reports, studies, plans, instructions and business and accounting records of every kind (including all financial, business and marketing plans) that are related to the Business, in each case whether evidenced in writing, electronic data, computer software or otherwise, other than those specifically identified as Excluded Assets below (copies of which will be provided to Purchaser); (x) all of the goodwill and other intangible property of Seller that are related to the Business or the foregoing items; and (xi) all other properties, assets, rights and interests not referred to in subsections (i) through (x) above owned by Seller as of the Closing, or in which Seller has an interest, that are related to or used by Seller in the conduct of the Business. All of the items described in this Section 1.1(a) to be acquired by Purchaser and which are not Excluded Assets are hereinafter collectively referred to as the “Purchased Assets.”

Purchased Assets; Excluded Assets. (a) Upon On the terms and subject to the conditions of this Agreementherein, at Closing, Seller hereby sellsagrees, assigns, conveys, transferstransfer and deliver to sell to Buyer, and delivers Buyer agrees to Purchaser free and clear of all Liens (other than Permitted Liens), and Purchaser hereby purchases purchase from Seller, all of the Seller's right, title, title and interest of Seller in and to all of the assets, properties, and rights of Seller relating to or specific Seller's assets used by Seller in the conduct of the Business, directly Business that are described in subsections (a) through (g) below or indirectly, in whole or in part, of every type and description, real, personal, or mixed, tangible and intangible, wherever located and whether or not reflected on the books of Seller, including, without limitationExhibit B (collectively, the following"Purchased Assets"): (a) All merchandising and audit accounts of Seller as set forth on Schedule 1.1(a) ("Business Customers") and all Customer Accounts; (b) All prospective Business Customers, as set forth on Schedule 1.1(b), and all associated proposals, responses and proposed solutions; (c) A single instance of the same data in the data base of independent contractor merchandisers and auditors that support the Business as of Closing in the form that exists as of the date hereof Closing (“Business Data”); provided, Buyer acknowledges and agrees that Seller shall also retain ownership of an instance of the Business Data as the same Business Data supports MFI Excluded Businesses; (i) To the extent assignable, telephones, computers and software licenses used solely by Hired Employees, and, (ii) the two toll free numbers: (000-000-0000 and 000-000-0000), and (iii) the office furniture and works stations sufficient for the work of the Hired Employees, as specifically described on Schedule 1.1(d); (e) Cash associated with prepayments and other deferred revenue relating solely to services to be performed under Customer Accounts following Closing as specifically described on Schedule 1.1(e); and (f) All processes, trade secrets, knowledge, experience and other know how used exclusively in or by the Business as well as knowledge retained in Hired Employees’ unaided memories used in the Business that may also have been used in an immaterial manner in MFI Excluded Businesses (the "Business Knowledge"). Notwithstanding anything to the contrary contained herein, Purchased Assets shall not include, and Seller shall exclusively retain: (i) except as set forth in Schedule 1.1(e), cash, accounts receivables and work-in-progress of the Business as of the Closing Time, (ii) prepaids and fixed assets as of the Business that are not specifically listed above or on Exhibit B, (iii) Seller's entity organizational documents and minute books, (iv) Seller's brands, logos and other trademarks and service marks, all casesprocesses, know how, trade secrets, inventions, copyrights, patents and all other intellectual property rights, other than the Excluded Assets): (i) all tangible personal property Business Knowledge and interests therein owned or leased by Seller, including all Equipment, inventory, training materials and the like, that are related to or used by Seller in the conduct a copy of the Business, wherever locatedBusiness Data, and any assignable warranties of third parties with respect thereto and rights to refunds or rebates in connection therewith; (ii) all of Seller’s right, title, and interest in, to and under (A) any purchase order or any Customer Contract providing for the delivery or provision of any Products after the Closing Date (for the avoidance of doubt, Purchaser is not assuming the underlying Customer Contract unless specifically listed on Schedule 1.1(a)(ii)) and (B) the Contracts set forth on Schedule 1.1(a)(ii) (the “Assumed Contracts”) and, in each case, all rights (including rights of refund and offset), privileges, deposits, claims, causes of action, and options relating or pertaining thereto; (iii) all Accounts Receivable; (iv) all Cash (except such Cash as reasonably required by the Assignee to wind down and dissolve the Seller’s Business in an amount not to exceed $25,000.00), prepaid expenses, deposits, and credits and rights relating to or utilized in the Business; (v) all Business Intellectual Property other rights and Business software, together with all income, royalties, damages, and payments due or payable at the Closing or thereafter (including damages and payments for past or future infringements or misappropriations thereof) with respect thereto, the right to sue and recover for past infringements or misappropriations thereof, any corresponding rights that, now or hereafter, may be secured throughout the world and all copies and tangible embodiments of any such Intellectual Property, including, without limitation, all of Seller’s patents and patent applications set forth in the Patent Assignment Agreement; (vi) all of Seller’s membership or ownership interests in Algaeon Ventures, which is being assigned to Purchaser under the Assignment of Membership Interest Agreement. (vii) all choses in action, causes of action, claims, and demands assets of Seller that are related or assets of or shared with the MFI Excluded Businesses to the Business (except for those causes of action that are related exclusively to the Excluded Assets), whether known or unknown, matured or unmatured, accrued or contingent, including rights of recovery, rights of warranty and indemnity, rights of set-off, and rights of recoupment; (viii) all advertising, marketing, and promotional materials and all other printed, written, or electronic materials, including any website content and telephone numbers that are owned or used by Seller in the conduct of the Business; (ix) all existing data, databases, books, records, correspondence, records of sales, customer and vendor lists, information related to accounts, personnel and referral sources, customers and prospective customers, billing records, files, papers and all manuals, drawings, reports, studies, plans, instructions and business and accounting records of every kind (including all financial, business and marketing plans) that are related to the Business, in each case whether evidenced in writing, electronic data, computer software or otherwise, other than those extent not specifically identified as Excluded Assets below (copies of which will be provided to Purchaser); (x) all of the goodwill and other intangible property of Seller that are related to the Business or the foregoing items; and (xi) all other properties, assets, rights and interests not referred to described in subsections (ia) through (xg) above owned by Seller as of or on Exhibit B (the Closing, or in which Seller has an interest, that are related to or used by Seller in the conduct of the Business. All of the items described in this Section 1.1(a) to be acquired by Purchaser and which are not "Excluded Assets are hereinafter collectively referred to as the “Purchased Assets").”

Purchased Assets; Excluded Assets. (a) Upon On the terms basis of the representations, warranties, covenants, and agreements herein, and subject to the conditions of this Agreementterms hereof, Seller hereby sellsat the Closing, assignsPurchaser shall purchase from Sellers and Sellers shall sell, conveysconvey, transfersassign, transfer and delivers deliver to Purchaser free and clear of all Liens (other than Permitted Liens), and Purchaser hereby purchases from SellerPurchaser, all of the right, title, title and interest of Seller in and to all of the assets, properties, properties and rights of Seller relating to the Division or that are primarily used by Seller or held for use in the conduct of connection with the Business, directly or indirectlywherever located, in whole or in partbut excluding the Excluded Assets (such assets, properties and rights, the “Purchased Assets”), all such Purchased Assets free and clear of all Liens, as follows: (i) all machinery, equipment, tools, furniture, office equipment, computer hardware, supplies, materials, vehicles and other items of tangible personal property (other than Inventories) of every type and description, real, personal, or mixed, tangible and intangible, kind primarily used by the Division (wherever located and whether or not reflected carried on the books of Seller, including, without limitation, the following, Division’s books) as the same exists as set forth on Section 2.1(a)(i) of the date hereof Sellers’ Disclosure Schedule, together with any express or implied warranty by the manufacturers or sellers or lessors of any item or component part thereof and all maintenance records and other documents relating thereto, (in all casescollectively, other than the Excluded Assets): (i) all tangible personal property and interests therein owned or leased by Seller, including all Equipment, inventory, training materials and the like, that are related to or used by Seller in the conduct of the Business, wherever located, and any assignable warranties of third parties with respect thereto and rights to refunds or rebates in connection therewith“Tangible Personal Property”); (ii) all inventories of Seller’s rightthe Division, titlewherever located, including all equipment subject to an Equipment Contract, finished goods, work in process, raw materials, spare parts and interest inall other materials and supplies to be used or consumed by the Division in the production of finished goods, to and under (A) any purchase order or any Customer Contract providing for the delivery or provision of any Products after the Closing Date (for the avoidance of doubt, Purchaser is not assuming the underlying Customer Contract unless specifically listed on Schedule 1.1(a)(ii)) and (B) the Contracts as set forth on Section 2.1(a)(ii) of the Sellers’ Disclosure Schedule 1.1(a)(ii) (the collectively, “Assumed ContractsInventories”) and, in each case, all rights (including rights of refund and offset), privileges, deposits, claims, causes of action, and options relating or pertaining thereto; (iii) all Accounts ReceivableReceivable set forth on Section 2.1(a)(iii) of Sellers’ Disclosure Schedule and any other Accounts Receivable related to the Tangible Personal Property, Inventories, or Assigned Contracts, including (A) all trade accounts receivable and other rights to payment from customers of the Division and the full benefit of all security for such accounts or rights to payment, including all trade accounts receivable representing amounts receivable in respect of goods shipped or products sold, rented or leased or services rendered to customers of the Division, (B) all other accounts or notes receivable of the Division, whether or not carried on the Division’s financial records, and the full benefit of all security for such accounts or notes, and (C) any claim, remedy or other right related to any of the foregoing; (iv) all Cash (except such Cash as reasonably required by the Assignee to wind down and dissolve the Seller’s Business in an amount not to exceed $25,000.00), prepaid expenses, deposits, and credits and rights relating to or utilized in the BusinessUnbilled Revenue; (v) all Business Intellectual Property and Business software, together with all income, royalties, damageseach Contract listed on Section 2.1(a)(v) of the Sellers’ Disclosure Schedule, and payments due all outstanding offers or payable at solicitations made by or to a Seller to enter into any Contract (the Closing or thereafter (including damages and payments for past or future infringements or misappropriations thereof) with respect thereto, the right to sue and recover for past infringements or misappropriations thereof, any corresponding rights that, now or hereafter, may be secured throughout the world and all copies and tangible embodiments of any such Intellectual Property, including, without limitation, all of Seller’s patents and patent applications set forth in the Patent Assignment Agreement“Assigned Contracts”); (vi) copies of all data and records (whether in tangible form or stored in an electronic or other medium) related to the operations of Seller’s membership the Division, including (A) financial records, Tax records, and invoices, provided that Parent may retain a complete copy or ownership interests original of the foregoing, and (B) correspondence, Uniform Commercial Code financing statements in Algaeon Venturesfavor of the Division with respect to equipment subject to an Equipment Lease and all rights of the Division thereunder, which is being assigned client and customer lists and records, referral sources, research and development reports and records, production reports and records, service and warranty records, equipment logs, operating guides and manuals, financial and accounting records, creative materials, advertising materials, sales and promotional materials, studies, reports, correspondence and other similar documents and records and, subject to Purchaser under the Assignment applicable Law, copies of Membership Interest Agreement.all personnel records of any Employee; (vii) all choses in actionof the intangible rights and property of the Division, causes of actionincluding (A) Intellectual Property owned or licensed by the Division (including rights to the names “Wessco”, claims“CWS”, “Waste Equipment Sales and Service Company”, “Waste Services Segment” and “Computerized Waste Systems”) and Confidential Information, (B) rights to any non-competition, non-solicitation and other restrictive covenants to which a Seller is a party and that relate to the Business, and demands any such covenants set forth in any Contract with current or former Employees of Seller that are the Division, (C) rights under warranties, indemnities and all similar rights against third parties to the extent related to any of the Business (except for those causes of action that are related exclusively to the Excluded Purchased Assets), whether known or unknown, matured or unmatured, accrued or contingent, including rights of recovery, rights of warranty and indemnity, rights of set-off, and rights of recoupment(D) going concern value, and goodwill; (viii) all advertisingtelephone, marketingtelecopy and e-mail addresses and listings used in connection with the operation of the Business (including those set forth on Section 2.01(a)(viii) of Sellers’ Disclosure Schedule); provided, and promotional materials and all other printedhowever, written, or electronic materials, including any website content and that those telephone numbers that are owned or used by Seller in the conduct of the Businesscannot be sold to Purchaser will be programmed to automatically transfer calls to Purchaser; (ix) all existing datainsurance benefits, databasesincluding rights and proceeds, books, records, correspondence, records of sales, customer and vendor lists, information related to accounts, personnel and referral sources, customers and prospective customers, billing records, files, papers and all manuals, drawings, reports, studies, plans, instructions and business and accounting records of every kind (including all financial, business and marketing plans) that are related arising from or relating to the Business, in each case whether evidenced in writing, electronic data, computer software Purchased Assets or otherwise, other than those specifically identified as Excluded Assets below (copies of which will be provided the Assumed Liabilities prior to Purchaser)the Closing Date; (x) all rights and claims of the goodwill and other intangible property Division in any Action of Seller that are related any nature available to or being pursued by the Division (including any counterclaims) relating to the Business Purchased Assets, Assumed Liabilities or the foregoing itemsBusiness; and (xi) all other propertiesrights of the Division relating to deposits and prepaid expenses, assetsclaims for credits, advance payments, charges, deposits, refunds and rights to offset in respect thereof that are not Excluded Assets (collectively, “Prepaid Amounts”). (b) Notwithstanding anything in this Agreement to the contrary, Sellers shall retain all right, title and interests not referred interest in and to, and Purchaser shall have no rights with respect to the following assets (such assets listed in subsections clauses (i) through (xvii) above owned below as they relate to Sellers, the “Excluded Assets”): (i) the corporate seals, organizational documents, minute books, stock books, Tax Returns, records solely having to do with the corporate organization of Sellers, and any other books and records which Sellers are prohibited from disclosing or transferring to Purchaser under applicable Law and are required by Seller as applicable Law to retain; (ii) any Cash of the ClosingDivision; (iii) those certain insurance policies listed on Section 3.18 of the Sellers’ Disclosure Schedule (“Insurance Policies”); (iv) any equity or other ownership interests of any Seller or Affiliate of Seller; (v) all rights of Sellers under this Agreement and the Transaction Documents; (vi) the names “Industrial Services of America”, or in which Seller has an interest“ISA Pick Pull Save”, “ISA Pull - N - Pay”, “Venture Metals”, “Industrial Services of America”, and “ISA Recycling” and any intellectual property rights with respect thereto; and (vii) any assets of Sellers that are related to or used by Seller in not among the conduct of the Business. All of the items described in this Section 1.1(a) to be acquired by Purchaser and which are not Excluded Assets are hereinafter collectively referred to assets defined as the “Purchased Assets.”

Purchased Assets; Excluded Assets. (a) Upon Without limiting the terms and subject generality of the definition of “Purchased Assets” set forth in the third recital to the conditions of this Agreement, Seller hereby sells, assigns, conveys, transfers, and delivers to Purchaser free and clear of all Liens (other than Permitted Liens), and Purchaser hereby purchases from Seller, the Purchased Assets shall include all of the Seller Parent’s and Seller’s (and, as applicable, their respective Affiliates’) right, title, title and interest of Seller in and to all of the assets, properties, and rights of Seller relating to or used by Seller in the conduct of the Business, directly or indirectly, in whole or in part, of every type and description, real, personal, or mixed, tangible and intangible, wherever located and whether or not reflected on the books of Seller, including, without limitation, the following, as the same exists as of the date hereof (in all cases, other than the Excluded Assets):: (i) all tangible personal property and interests therein owned or leased by SellerSeller Intellectual Property, including all Equipmentthe registrations and applications listed on Schedules 3.5(a)(i), inventory, training materials (ii) and the like, that are related to or used by Seller in the conduct of the Business, wherever located(iii), and subject to any assignable warranties of third parties with respect thereto and rights update pursuant to refunds or rebates in connection therewithSection 2.5(c); (ii) all Books and Records and other originals of Seller’s rightany tangible embodiments of Seller Intellectual Property, title, and interest in, to and under (A) including original files of any purchase order Patents that have issued in any of the Seller Parties’ names or any Customer Contract providing for the delivery or provision of any Products after the Closing Date (for the avoidance of doubt, Purchaser is not assuming the underlying Customer Contract unless specifically listed on Schedule 1.1(a)(ii)) and (B) the Contracts set forth on Schedule 1.1(a)(ii) (the “Assumed Contracts”) and, in each case, all rights (including rights of refund and offset), privileges, deposits, claims, causes of action, and options relating or pertaining theretotheir respective Affiliates’ names; (iii) Compounds and all Accounts Receivableright, title and interest in and to all inventory of any Compound in any of the Seller Parties’ (or their respective Affiliates’) possession or Control as of the Closing Date together with all work-in-progress, packaging and all bulk active pharmaceutical ingredient, if any, related to a Compound owned by any of the Seller Parties (or their respective Affiliates, as applicable) as of the Closing Date (collectively, the “Inventory”); (iv) all Cash rights in and to the Contracts set forth in Schedule 2.2(a)(iv) (except such Cash as reasonably required by collectively, the Assignee to wind down and dissolve the Seller’s Business in an amount not to exceed $25,000.00“Assumed Contracts”), prepaid expenses, deposits, and credits and rights relating to or utilized in the Business; (v) Regulatory Documentation generated under or in connection with the Exploitation of the Technology, including original and, if available, electronic copies of all Business Intellectual Property (A) clinical studies and Business software, together with tests and all income, royalties, damages, and payments due or payable at the Closing or thereafter data generated therefrom (including damages case report forms), (B) all correspondence and payments for past other documentation related to communications to or future infringements or misappropriations thereoffrom Governmental Authorities and (C) with respect thereto, the right to sue all other supporting documentation and recover for past infringements or misappropriations thereof, any corresponding rights that, now or hereafter, may be secured throughout the world and all copies and tangible embodiments of any such Intellectual Property, including, without limitation, all of Seller’s patents and patent applications set forth materials in the Patent Assignment Agreementpossession of the Seller Parties that would be necessary or useful to obtain or maintain Regulatory Approvals in connection with the Exploitation of the Technology or the Exploitation of Compounds; (vi) all of Seller’s membership or ownership interests in Algaeon Ventures, which is being assigned to Purchaser under the Assignment of Membership Interest Agreement.Research Tools; (vii) databases characterizing the Compounds, together with all choses in action, causes of action, claims, and demands of Seller that are related to the Business (except for those causes of action that are related exclusively to the Excluded Assets), whether known or unknown, matured or unmatured, accrued or contingentinformation contained therein, including rights information regarding the structure of recovery, rights of warranty such Compounds and indemnity, rights of setany isoflavone-off, and rights of recoupmentrelated screening with respect to such Compounds; (viii) all advertisingPermits and applications for any Permits, marketingtogether with any renewals, and promotional materials and all other printed, writtenextensions, or electronic materials, including any website content modifications thereof and telephone numbers that are owned or used by Seller in the conduct of the Businessadditions thereto; (ix) all existing dataprepayments, databasesdeposits, books, records, correspondence, records of sales, customer claims for refunds and vendor lists, information related to accounts, personnel prepaid expenses on hand and referral sources, customers and prospective customers, billing records, files, papers and all manuals, drawings, reports, studies, plans, instructions and business and accounting records of every kind (including all financial, business and marketing plans) that are related in accounts relating to the Business, in each case whether evidenced in writing, electronic data, computer software Purchased Assets or otherwise, other than those specifically identified as Excluded Assets below (copies of which will be provided to Purchaser)the Assumed Liabilities; (x) all claims, counterclaims, credits, causes of action, choses in action, rights of recovery, and rights of indemnification or setoff against third parties and other claims arising out of or relating to any Purchased Assets or the goodwill Assumed Liabilities and all other intangible property of Seller rights that are related relate to the Business any Purchased Assets or the foregoing itemsAssumed Liabilities; and (xi) all other propertiesinsurance benefits, assets, including rights and interests proceeds, arising from or relating to the Purchased Assets or the Assumed Liabilities prior to the Closing. (b) Notwithstanding Section 2.2(a), Buyer shall not referred acquire from Seller Parties pursuant to in subsections (i) through (x) above owned by Seller as this Agreement any of the Closing, or in which Seller has an interest, that are related to or used by Seller in the conduct assets set forth on Schedule 2.2(b) of the Business. All of the items described in this Section 1.1(a) to be acquired by Purchaser and which are not Excluded Assets are hereinafter collectively referred to as Agreement (the “Purchased Excluded Assets”).”