Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”): (a) the Business as a going concern; (b) the goodwill, if any, relating to the Business; (c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto; (d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases; (e) all Inventory, work in progress and raw material; (f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f); (g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”); (h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto; (i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date; (j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years); (k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date; (l) a list of unfulfilled orders of the Business as at the Closing Date; (m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities; (n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business; (o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business; (p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets; (q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof); (r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements; (s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and (t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities. 3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets. 3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances. 3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment. 3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent. 3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 2 contracts
Sources: Asset Transfer Agreement, Asset Transfer Agreement (Repligen Corp)
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out forth in this Agreement, at effective as of the ClosingEffective Time, Sellers shall sell, convey, assign, transfer and deliver to Purchaser, free and clear of all Encumbrances other than the Company agrees Permitted Encumbrances, and Purchaser shall purchase and acquire from Sellers, Sellers’ right, title and interest in and to sell all of the Company’s property and the Buyer agrees to purchase all assets, propertiesreal, rightspersonal or mixed, titles tangible and interests intangible, of every kind or nature ownedand description, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, (but excluding all the Excluded Assets and Excluded Liabilities, (as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”defined below)):
(a) all of the Business as a going concernCompany’s interests in the Owned Real Property set forth on Schedule 2.01(a) (the Assumed Real Property);
(b) all Tangible Personal Property of the goodwillCompany, if anyincluding those items set forth on Schedule 2.01(b), relating to the Businessexcept as excluded under Section 2.02(d);
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretoInventories of the Company;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d)Accounts Receivable of the Company, including all inter-company receivables due to the Real Property LeasesCompany;
(e) all InventoryCompany Contracts and DESC Contracts set forth on Schedule 2.03(e) (collectively, work in progress and raw materialthe Assumed Contracts);
(f) to the extent transferable, all Fixed Assets, including such assets scheduled Governmental Authorizations and all pending applications therefor or renewals thereof set forth on Appendix 3.1.1(fSchedule 3.04(c);
(g) except for any Excluded Assets or Excluded Liabilities all data and Records related to the operations of the Company, including 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, Tax Records, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and Records (all in the state in which such records and information currently exists) and, subject to Sections 3.1.5Legal Requirements, 3.6 copies of all personnel Records and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”other Records described in Section 2.02(h);
(h) subject all of the intangible rights and property owned or licensed by the Company, including Intellectual Property Rights (including the right to Section 11.6▇▇▇ and recover for past infringement), all rights goodwill, telephone and telecopy numbers to the employment of the Employeesextent transferable, including and e-mail addresses, listings and those individuals items set forth in Appendix 3.1.1(hon Schedules 3.11(a) attached heretoand (b), and further including all files, correspondence, records or other documentation associated therewith;
(i) to the extent transferable, all records of Taxes insurance benefits, including rights and employer’s fees proceeds, arising from or relating to all the Employees duly completed and up Purchased Assets or the Assumed Liabilities prior to datethe Effective Time, covering the three (3) financial years preceding the Accounts Dateexcept as excluded under Section 2.02(f);
(j) all lists rights, privileges, claims, offsets, demands, choses in action and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents indemnification rights of the Business (including without limitation a list of all Company against or with respect to any Person in connection with or otherwise relating to the customers Business, any of the Business during Purchased Assets, and/or any of the last two years)Assumed Liabilities whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent;
(k) a list of potential customers all rights of the Business Company relating to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claimsdeposits and prepaid expenses, deposits, prepayments, Prepaid Expenses, warranties, guarantees, claims for refunds, causes of action, indemnification rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss offset relating to the Purchased Assets;
(ql) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and security or other technical material and sales matter which relate deposits relating to the Business, together with Assumed Real Property and any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof)equipment owned or leased by the Company;
(rm) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings customer lists and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals sales invoices for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the last three (3) financial fiscal years preceding related to the Accounts DateCompany, whether generated by, or used by, the Company or any Affiliate of the Company;
(n) the Company’s claims, causes of action and rights of recovery pursuant to Sections 544 through 550 and Section 553 of the Bankruptcy Code and any other avoidance action under any other applicable provisions of the Bankruptcy Code with respect to those Third Parties the Liabilities of which Purchaser is assuming pursuant to Section 2.04(a); and
(to) all other assets of any kind or nature proceeds of the Companyforegoing and all other property of the Company of every kind, as applicablecharacter or description, which relate tangible and intangible, known or unknown, wherever located and whether or not reflected on the Company Financial Statements or Interim Financial Statements, or similar to the Business other than properties described above except for the Excluded Assets or Excluded Liabilities.
3.1.2 Upon Assets. All of the terms foregoing property and subject assets are herein referred to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, collectively as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets. Notwithstanding the foregoing, these assets, rights and properties shall forthwith be promptly transferred by the Seller or transfer of the Company, as the case may be, Purchased Assets pursuant to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect include the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement assumption of any payment of money by Liability in respect thereof unless the Company, the Seller or the Buyer) to obtain the consent of the other parties to any Purchaser expressly assumes such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject Liability pursuant to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts2.04(a).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Distributed Energy Systems Corp), Asset Purchase Agreement (Distributed Energy Systems Corp)
Purchased Assets. 3.1.1 Upon Subject to the terms and subject conditions of this Agreement and to the conditions set out in this Agreementcontinued accuracy of the representations and warranties contained herein, at on the ClosingClosing Date, Seller shall sell, convey, assign, transfer and deliver ("Transfer") to Purchaser and Purchaser shall purchase, receive and accept delivery from Seller, free and clear of all Liens, all of Seller's then existing properties and assets (other than the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests Excluded Assets) of every kind and nature, real, personal or nature ownedmixed, leasedtangible or intangible, licensed or otherwise held by wherever located (collectively, the Company "Purchased Assets"), including, without limitation, all right, title and interest of Seller in, to and under:
2.1.1 All of the assets reflected on the Interim Financial Statement, other than the Excluded Assets and those assets disposed of after the Interim Financial Statement Date in the ordinary course of business consistent with past practice (including indirect with respect to quantity and frequency);
2.1.2 All equipment, furniture, trade fixtures and other forms tangible personal property owned by Seller, including, without limitation, those items listed on Schedule 2.1.2 attached hereto and incorporated herein by this reference (the "Fixed Assets");
2.1.3 All of beneficial ownershipthe Contracts;
2.1.4 All rights to payment as a consequence of (a) deposits and prepayments including, without limitation, the deposit under the Lease, listed on Schedule 2.1.5 attached hereto and incorporated herein by this reference and (b) any refunds, rights of set off, rights of recovery, and claims or causes of action relating to the Purchased Assets that arise after the Closing (except for refunds of Taxes to the extent provided in Section 9.3);
2.1.5 Cash in an amount equal to all client retainer balances which remain outstanding as of the Closing Date;
2.1.6 All creative materials, advertising and in any case, belonging to promotional materials necessary or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together connection with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased business of Seller or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets Selling Members, wherever stored or Excluded Liabilitieslocated;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of 2.1.7 All files, documents, correspondence, studies, reports, books and records of Seller (including all data and other information stored on discs, tapes or other media), client lists, studies client records and reports credit data, computer programs, software, and other printed hardware owned or written materials which relate to used in connection with the Business, to business of Seller or any of the extent such information and documentation exists; provided thatSelling Members (collectively, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements"Documents");
(s) 2.1.8 All general intangibles used by the value added Tax Seller that is not an Excluded Asset; and
2.1.9 All other assets of Seller, whether or not reflected on the books or records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded LiabilitiesSeller.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Lecg Corp), Asset Purchase Agreement (Lecg Corp)
Purchased Assets. 3.1.1 Upon On the terms and subject to the conditions set out in this Agreement, at the Closingcontained herein, the Company agrees Seller Parties shall sell, convey, transfer, assign and deliver to sell Buyer, and the Seller Parties shall cause Buyer agrees to purchase purchase, acquire and accept from the Seller Parties, free and clear of all assetsLiens (other than those Liens included in the Assumed Liabilities), properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as all of the Closing DateSeller Parties’ right, title and interest in any case, belonging and to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assetsassets which the Seller Parties own or in which the Seller Parties have any right, but excluding all title or interest, other than those assets specified as Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):) as the same shall exist on the Closing Date:
(ai) all cash and cash equivalents, bank accounts and securities of Seller (the Business as a going concern“Included Cash”);
(bii) the goodwill, if any, relating to all accounts or notes receivable of the Business;
(ciii) all Accounts Receivableinventory, notes receivable and other amounts receivable from third partiesfinished goods, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventoryraw materials, work in progress progress, packaging, supplies, parts and raw material;other inventories of the Business (“Inventory”)
(fiv) all Fixed AssetsContracts set forth on Schedule 2.1(iv)(i), including such assets scheduled the lease set forth on Appendix 3.1.1(f);
(gSchedule 2.1(iv)(ii) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement Intellectual Property Licenses set forth on Schedule 2.1(iv)(iii) (collectively, the “Assigned Contracts”);
(hv) subject to Section 11.6all Intellectual Property owned by Seller Parties and used exclusively in connection with the Business, all rights to including, without limitation, the employment of Intellectual Property and the Employees, including those individuals Intellectual Property Registrations set forth in Appendix 3.1.1(hon Schedule 2.1(v) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years“Intellectual Property Assets”);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(mvi) all claimsfurniture, depositsfixtures, prepaymentsequipment, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations supplies and other certifications required for the Business;
tangible personal property owned by Seller and located in Norcross, Georgia (p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased “Tangible Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof”);
(rvii) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory booksPermits listed on Schedule 2.1(vii), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, but only to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall Permits may be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.applicable Law;
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Pursuant to the terms and subject to the conditions set out in this Agreementforth herein, at the Closing, Buyer shall purchase, and the Company agrees shall sell, convey, assign, transfer and deliver to sell and Buyer, all of the Buyer agrees to purchase all assets, properties, rights, titles and interests interests, other than the Excluded Assets, of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real real, personal or personal mixed and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 assets (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(ci) all Accounts Receivabletangible personal property, notes receivable including all machinery, equipment, molds, tools, spare parts, furniture, accessories, office materials, packaging and shipping materials, office equipment, personal computers, telephone units, facsimile machines, file cabinets, artwork and drawings and other amounts receivable from third partiestangible personal property, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate those items listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(fSchedule 1.1(a)(i);
(gii) except for any Excluded Assets or Excluded Liabilities all raw materials, work-in-progress, finished goods, supplies and other inventories, wherever situated subject to Sections 3.1.5, 3.6 and 11.6, all Client rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned ContractsInventory”);
(hiii) subject to Section 11.61.1(b) and Section 1.3, all rights existing under the Assumed Contracts;
(iv) all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached heretoemployees of the Company;
(iv) all records of Taxes with respect to Assumed Contracts, and employer’s fees relating with respect to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents any of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to foregoing rights which outstanding quotations have been given as at accrue after the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) , all claims, deposits, prepayments, Prepaid Expensesprepaid expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff set-off and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Businessincluding those listed on Schedule 1.1(a)(v), except also for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(nvi) all Intellectual Property Rights owned or otherwise held by the Company as part of the BusinessCompany;
(ovii) all licenses, consents, permits Permits;
(viii) all books and authorisations necessary for the Company to carry on the Businessrecords, including the Key Permitsledgers, correspondence, lists, studies and reports and other printed or written materials, including, without limitation, all lists and records pertaining to customers, personnel, agents, suppliers, distributors and pricing, purchase and sale records, quality control records, research and development files, files and data, company manuals and other business related documents and materials, whether written, electronic or otherwise, all telephone and facsimile numbers and internet access (including email) accounts, and all material product (including software) registrationsinformation relating to Taxes; provided, accreditations and other certifications that the Company may retain copies of any records as may be required for the Businessby or to comply with applicable Law or as necessary or advisable to perform its obligations hereunder;
(pix) all other assets of any kind or nature of the Company; and
(x) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of foregoing Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out in of this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of on the Closing Date, Seller shall sell, transfer, assign, convey and in any casedeliver to Buyer, belonging to or intended to be used in and Buyer shall purchase from Seller, free and clear of all Encumbrances (except for Permitted Encumbrances), substantially all of the BusinessBusiness and substantially all of the assets and properties owned by Seller of every kind and description, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assetsreal, but excluding all Excluded Assets and Excluded Liabilitiespersonal or mixed, as further detailed below and on Appendix 3.1.1 (together tangible or intangible, used primarily in connection with the assets, properties, rights, titles and interests set forth in Section 3.1.2, Business (herein collectively called the “Purchased Assets”):), including, without limitation, all right, title and interest of Seller in, to and under:
(a) all raw materials, supplies, work-in-process and other materials included in the inventory of the Business as a going concernlisted in the Supply Chain Management Materials subject to ordinary course of business fluctuations;
(b) the goodwill, if any, relating to the BusinessOwned Real Property listed in Schedule 5.10;
(c) all Accounts Receivablethe Tangible Property, notes receivable including without limitation the machinery, equipment, vehicles, furniture and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretopersonal property listed or referred to in Schedule 5.12;
(d) all interests the personal property leases listed in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property LeasesSchedule 5.13;
(e) all Inventory, work the Selected Agreements listed or described in progress and raw materialSchedule 5.18;
(f) all Fixed Assetsof Seller’s rights, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets claims or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates causes of action against third parties relating to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject Purchased Assets arising out of transactions occurring prior to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(mg) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff books and rights of recoupment of every kind and nature records (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations data and other certifications required for the Business;
(pinformation stored on discs, tapes or other media) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss Seller relating to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(th) Software licence listed in Schedule 2.1(h); and
(i) Seller’s interest in and to all telephone, telex and telephone facsimile numbers and other assets of any kind directory listings allocated or nature of the Company, as applicable, which relate relating to the Business other than the Excluded Assets or Excluded LiabilitiesOwned Real Property.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Lsi Corp)
Purchased Assets. 3.1.1 Upon Except for the terms and subject to the conditions set out in this AgreementExcluded Assets, at the Closing, Seller shall sell to the Company agrees to sell Buyer, and the Buyer agrees to shall purchase all assetsfrom Seller, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assetsSeller’s right, but excluding all Excluded Assets title and Excluded Liabilities, as further detailed below interest in and on Appendix 3.1.1 to the Seller’s assets (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):), including, but not limited to, the following, free and clear of all Liens except Permitted Liens, but excluding the Excluded Assets:
(a) all cash and accounts receivable, including without limitation, the Business as a going concernbank accounts set forth on Schedule 2.23;
(b) the goodwillall inventory, if anyparts, relating to the Businesscastings, moldings, fixtures and tooling wherever located;
(c) all Accounts Receivableto the extent assignable to Buyer, notes receivable and other amounts receivable from third parties, including customers and employees, any and all correspondence with respect theretopermits, consents and licenses held by the Seller;
(d) all interests furniture, fixtures, machinery, equipment, vehicles, tools and implements of any kind, character or nature (including without limitation such of the foregoing as are presently leased by Seller under capital leases described in leased or subleased real estate listed on Appendix 3.1.1(dSection 1.4(a) hereof), including the Real Property Leases;
(e) all Inventorythe Assumed Contracts, work in progress and raw materialincluding those listed on Schedule 1.1(e);
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f)of the Seller’s interests in all improvements to the Real Property;
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5all Intellectual Property Rights, 3.6 and 11.6, including all rights to the corporate and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which tradenames of the Seller is a party if any such Contract relates to the Businessand those copyrights, includingpatents, without limitation each Material Agreement (collectivelytrademarks, the “Assigned Contracts”tradenames and pending applications therefore listed on Schedule 1.1(g);
(h) subject all prepaid expenses of Seller relating to Section 11.6, all rights to periods following the employment of the EmployeesClosing, including those individuals set forth amounts paid in Appendix 3.1.1(h) attached heretoadvance on account of rent, property taxes, utility charges, fees and deposits;
(i) originals or copies (at the option of Buyer) of all books, records, manuals, files, customer and supplier lists and records, accounts and billing records, plans, blueprints, specifications, drawings, surveys personnel records (to the extent they may lawfully be provided to Buyer) and operating data of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts DateSeller whether in electronic format or otherwise;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents rights of the Business (including without limitation a list of Seller in and to all the customers of the Business during the last two years)databases, software, software programs, object codes, source codes, systems documentation and user manuals;
(k) a list all claims, causes of potential customers action and rights of the Business to which outstanding quotations have been given as at recovery of Seller, whether asserted or commenced on or before the Closing Date;
(l) a list of unfulfilled orders the right to ▇▇▇▇ and receive payments for products shipped or delivered by Seller but unbilled or unpaid as of the Business as at the Closing DateClosing;
(m) all claimstelephone numbers (e.g., depositstoll free numbers), prepaymentsfacsimile numbers, Prepaid ExpensesInternet addresses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff websites and rights of recoupment of every kind and nature (including rights similar numbers or addresses assigned to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;used by Seller; and
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licensesSeller’s catalogs, consentssamples, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional marketing and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Subject to the terms and subject to the conditions set out forth in this Agreement, at the Closing, the Company Seller agrees to sell sell, convey, assign, transfer and the Buyer deliver to Purchaser and Purchaser agrees to purchase from the Seller at the Closing (as defined below), all assetsright, propertiestitle and interest in and to the following assets that are used in, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by relate to, the Company Single Axis Tracker Business, including those listed below wherever located (collectively, the “Purchased Assets”) free and clear of all security interests, mortgages, liens, offsets, recoupments, pledges, charges, rights of first refusal or purchase options, claims, third party interests, restrictions and encumbrances of any nature whatsoever other than the Permitted Liens (collectively, the “Liens”):
(a) all Inventory (including indirect raw materials, work-in-process and other forms finished goods) of beneficial ownershipthe Single Axis Tracker Business listed on Schedule 2.1(a) (the “Purchased Inventory”);
(b) those certain customer, supplier and vendor agreements, open quotes and requests for proposal of the Seller related to the Single Axis Tracker Business, including all related open purchase orders, sales orders, open quotes and requests for proposal existing as of the Closing Date, and in any caseall other contracts, belonging to or intended to be used in the Businessif any, whether tangibleall as listed on Schedule 2.1(b) hereto (this clause (b), intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased AssetsContracts”):
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business);
(c) all Accounts Receivablefuture profits and revenues associated with any Purchased Contracts, notes receivable and other amounts receivable from third partiesincluding, including customers and employeesif applicable, and all correspondence with respect theretoany future rights to governmental credits;
(d) all interests Intellectual Property used by or necessary in leased or subleased real estate connection with the Single Axis Tracker Business , including patents, patent applications, and copyrights all as listed on Appendix 3.1.1(d)Schedule 2.1(d) hereto, and the related know how, trade secrets, techniques of skill and operation related to the Purchased Assets (the “Purchased Intellectual Property”) and all written records, files, documentation and correspondence relating to the Purchased Intellectual Property, including correspondence with the Real Property LeasesUSPTO and patent counsel;
(e) all Inventory▇▇▇▇ of materials, work assembly drawings, spec sheets, installation manuals, training manuals, and written instructions, including, written instructions for assembling controllers used in progress or used in connection with the Business, including any pertaining to Remote Sensor Unit (RSU), Tracker Control Unit (TCU) and raw materialNetwork Control Unit (NCU), and any internal or third party manuals, written instructions or other documentation, and any internal or third party manuals or other documentation used in or used in connection with the Single Axis Tracker Business;
(f) all Fixed Assetscomputers (servers), including such assets scheduled on Appendix 3.1.1(f);and other hardware, software, source code and programs necessary to the Single Axis Tracker Business,
(g) except for any Excluded Assets or Excluded Liabilities all mechanical, electrical, motion control, and subject to Sections 3.1.5environmental condition laboratory testing equipment and all shop, 3.6 warehouse and 11.6office equipment, all rights miscellaneous tools and obligations arising after supplies of the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Single Axis Tracker Business, includingincluding the tooling, without limitation each Material Agreement molds, drawings, parts, machinery, tools and equipment listed on Schedule 2.1(g) (collectively, the “Assigned ContractsPurchased Equipment”);
(h) subject to Section 11.6all operating data, all rights customer records, customer lists, prospect lists, outstanding quotes, marketing materials, correspondence, product literature and other documents relating to the employment manufacturing, marketing, sales, distribution and selling activities of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached heretoSingle Axis Tracker Business;
(i) all records of Taxes licenses and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part Permits of the Business;
(oj) any and all licenses, consents, permits and authorisations necessary for the Company to carry on goodwill of the Business, including ; and
(k) copies of all the Key PermitsSeller’s books and records (but not the financial books and records), and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss process records related to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions Except as otherwise expressly set out forth in this Agreement, at the ClosingSection 2.3, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of Purchased Assets shall include the following assets, but excluding all Excluded Assets properties and Excluded Liabilities, rights of Seller as further detailed below and of the close of business on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):Closing Date:
(a) the Business as a going concernall Equipment;
(b) the goodwill, if any, relating to the Businessall Inventory;
(c) all Accounts Receivable, notes receivable supplies and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretopackaging used in the operation of the Seller’s Business;
(d) all interests in leased or subleased real estate Accounts Receivable, including all Accounts Receivable listed on Appendix 3.1.1(dSchedule 2.2(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;Intellectual Property,
(f) all Fixed state, federal and local Permits and licenses used by Seller to own and operate the Business for the ownership and use of the Purchased Assets, to the extent assignable to Purchaser, including such assets scheduled those listed on Appendix 3.1.1(fSchedule 2.2(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5prepaid expenses, 3.6 and 11.6credits, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Businessadvance payments, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guaranteessecurity, refunds, causes of action, rights of recovery, rights of setoff and set off, rights of recoupment recoupment, and deposits, including those listed on Schedule 2.2(g);
(h) all telephone numbers which are used in the Business and listed on Schedule 2.2(h);
(i) all rights of every kind Seller under the Assumed Contracts listed on Schedule 2.2(i);
(j) all Leased Real Property;
(k) all rights under warranties, indemnities and nature all similar rights against third parties to the extent related to any Purchased Assets;
(l) all insurance benefits, including rights to insurance and proceeds) which relate , arising from or relating to the Business, except for the Purchased Assets or the Assumed Liabilities;
(m) originals, or where not available, copies, of all books and records, including, but not limited to, books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority), sales material and records (including pricing history, total sales, terms and conditions of the foregoing sale, sales and pricing policies and practices), strategic plans, internal Financial Statement, marketing and promotional surveys, material and research and files relating to the extent they relate to Excluded Intellectual Property Assets or Excluded Liabilities;and the Intellectual Property Agreements (”Books and Records”); and
(n) all Intellectual Property Rights owned or otherwise held by the Company as part goodwill and going concern value of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Altair International Corp.)
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out in of this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of on the Closing Date, Seller shall sell, transfer, assign, convey and in any casedeliver to Buyer, belonging to or intended to be used in and Buyer shall purchase from Seller, on a going concern basis, free and clear of all Encumbrances (except for Permitted Encumbrances), all of the Businessbusiness and operations of Seller and the goodwill associated therewith and all of the assets and properties of Seller of every kind and description, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assetsreal, but excluding all Excluded Assets and Excluded Liabilitiespersonal or mixed, tangible or intangible, as further detailed below and the same shall exist on Appendix 3.1.1 the Closing Date (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, other than Excluded Assets) (herein collectively called the “Purchased Assets”), including, all right, title and interest of Seller in, to and under the following, as the same shall exist on the Closing Date (other than Excluded Assets):
(a) all of the Business as a going concernassets reflected on the Balance Sheet, except for those assets disposed of or converted into cash after the Balance Sheet Date;
(b) all client deposits and prepayments owned or possessed by Seller and all rights to any such deposits or prepayments, in each case for work not completed as of the goodwill, if any, relating to the BusinessClosing Date (“Deposits”);
(c) all Accounts Receivable, notes receivable the real estate leases and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretoleasehold improvements listed or described in Schedule 5.11;
(d) all interests the equipment, vehicles, furniture and other personal property listed or referred to in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property LeasesSchedule 5.13;
(e) all Inventory, work the personal property leases listed in progress and raw materialSchedule 5.14;
(f) the Copyrights, Patent Rights and Trademarks (and all Fixed Assetsgoodwill associated therewith), including such assets scheduled on Appendix 3.1.1(f)and the agreements, contracts, licenses, sublicenses, assignments and indemnities, listed in Schedule 5.15;
(g) except for any Excluded Assets the contracts, agreements or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party understandings listed or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”)described in Schedule 5.19;
(h) subject to Section 11.6all of Seller’s client engagements, all rights to the employment of the Employeescontracts or agreements with clients, including those individuals set forth in Appendix 3.1.1(h) attached heretoclient relationships, client work papers and client lists;
(i) all records of Taxes and employer’s fees relating any assets that become Purchased Assets pursuant to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts DateSection 9.13(b);
(j) all lists Trade Secrets and records pertaining to customer accounts (whether past other proprietary or current), suppliers, distributors, personnel and agents confidential information of the Business (including without limitation a list of all the customers of the Business during the last two years)Seller;
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing DateSoftware listed in Schedule 5.15;
(l) all of Seller’s rights, claims or causes of action against third parties relating to the Purchased Assets (it being understood that notwithstanding the foregoing, if a list claim or cause of unfulfilled orders action is commenced by a third party against Seller and such claim or cause of action relates to the business or operations of Seller prior to the Closing and will have no material adverse continuing effect on the Business or the Purchased Assets as at a whole, then Seller shall, to the Closing Dateextent such claim or cause of action relates to such business or operations of Seller prior to the Closing, (i) retain its rights, claims and causes of action against such third party solely for the purposes of commencing a counter-claim; and (ii) retain all rights to any award, settlement, compromise or other resolution of such counter-claim);
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff books and rights of recoupment of every kind and nature records (including rights to insurance proceedsall data and other information stored on discs, tapes or other media) which relate to the Businessof Seller, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;including sales, advertising and marketing materials; and
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licensestelephone, consentstelex and telephone facsimile numbers, permits Internet sites and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations addresses and other certifications required for directory listings utilized by Seller. For the Business;
avoidance of doubt, Buyer acknowledges that: (pi) all insuranceSeller is not selling, warranty transferring, assigning, conveying or delivering to Buyer (and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(qAssets shall not include) all plansany client work papers, instructional and promotional materialclient proprietary or confidential information or other asset or interest therein that is not owned by Seller but is owned by a client of Seller; provided that Buyer shall have access to such client work papers, sales publications, advertising materials, terms and conditions of sale and client proprietary or confidential information or other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except asset to the extent they relate necessary to Excluded Assets or Excluded Liabilitiesperform engagements for such client, all computer programssubject to any required consent of such client; and (ii) certain matters handled by Seller (which are expected to be transferred to Buyer) are classified by a Governmental Body and involve classified documents, copies of books materials and information (other than minute books relating and that access to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of filessuch matters, documents, correspondence, lists, studies materials and reports and other printed or written materials which relate information are limited to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose certain specified employees of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded LiabilitiesSeller).
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Navigant International Inc)
Purchased Assets. 3.1.1 Upon Subject to the terms and subject to the conditions set out in of this Agreement, at on the ClosingClosing Date (as defined in Section 4.1), the Company agrees to Seller will sell and the Buyer agrees assign to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing DateBuyer, and in any caseBuyer will purchase from Seller, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of Seller's operating assets and all other assets used or useful in connection with the following assets, but excluding all Business (other than the Excluded Assets and Excluded LiabilitiesAssets, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth defined in Section 3.1.21.2), the “Purchased Assets”):including, without limitation:
(a) the Business as a going concernequipment, vehicles, rolling stock, racks, furniture, fixtures, fixed assets and leasehold improvements including, without limitation, those items described in EXHIBIT 1.1(A);
(b) the goodwill, if any, relating inventories of masonry materials and supplies and related products and supplies with respect to the BusinessBusiness which are held for resale (the "INVENTORY");
(c) all Accounts Receivableaccounts, manufacturers rebates, and notes receivable held by Seller and notes, bonds and other amounts receivable evidences of indebtedness of and rights to receive payments from third partiesany person held by or owed to Seller (the "ACCOUNTS RECEIVABLE"), including customers and employeesincluding, without limitation, those described in SCHEDULE 5.20(B), other than those listed accounts which were totally written off as of the Effective Time, and all correspondence with respect theretoof Seller's rights in collateral that secures any or all of the Accounts Receivable or other indebtedness owed to Seller;
(d) prepaid expenses and security deposits described in EXHIBIT 1.1(D) and all interests other current assets related to or required in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property LeasesBusiness;
(e) all Inventory, work in progress and raw materialof Seller's rights under the real property leases attached hereto as SCHEDULE 5.11(B) (the "THIRD PARTY LEASES");
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all 's rights under such Contract, the Company or the Seller, equipment leases and contracts attached as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.SCHEDULE 5.11
Appears in 1 contract
Purchased Assets. 3.1.1 Upon The Purchased Assets are those assets of Seller used in the terms Business listed below:
(a) all of the billboard displays and subject other out-of-home advertising structures, together with all components, fixtures, parts, appurtenances, and equipment attached to or made a part thereof that are existing, under construction or for which Seller has any rights (including at least 13 structures and 50 sign faces) (collectively, the "Structures"), including, without limitation, all of tile Structures listed on Schedule 2.2(a);
(b) all leases, licenses, easements, other rights of ingress or egress, and all other grants of the right to place, construct, own, operate or maintain billboard displays and other out-of-home advertising structures (including, without limitation, the Structures) on land, buildings and other real property owned by third parties, and all rights therein (collectively, the "Site Leases"), including, without limitation, those Site Leases listed on Schedule 2.2(b):
(c) all of the rights under existing and pending sales and advertising contracts associated with the Business, all rights to the conditions set out in this Agreement, at advertising copy displayed on the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) Structures as of the Closing Date, all other rights to collect and in any case, belonging to or intended to be used in receive income from the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all use of the following assets, but excluding all Excluded Assets Structures and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwillsecurity deposits, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretothereto (collectively, the "Advertising Contracts"), including, without limitation, all of the Advertising Contracts listed on Schedule 2.2(k);
(d) subject to the provisions of Section 5.10, all interests state and local licenses or permits/tags which Seller has or has an interest in leased or subleased real estate with respect to the Business and all other Governmental Authorizations that are required for the operation of the Business (collectively, the "Permits"), including, without limitation, all of the Permits listed on Appendix 3.1.1(dSchedule 2.2(d), including the Real Property Leases;
(e) all Inventoryaccounts receivable, work prepaid items and other assets of the Business as of the Closing Date that would be reflected as current assets on a balance sheet of the Business as of the Closing Date prepared in progress a manner consistent with Section 3. 10(a), but excluding cash and raw materialcash equivalents;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f)pertinent Books and Records;
(g) except for any Excluded the Intangible Property (it being understood that as to Seller's trade name "Boon▇ ▇▇▇pany, Inc.", Buyer shall be entitled to use such name in connection with its operation of the Purchased Assets or Excluded Liabilities and subject Seller shall be entitled to Sections 3.1.5, 3.6 retain the use of this name as its corporate name and 11.6, all rights and obligations arising after in connection with the Closing existing under all Contracts to operation by Seller of those businesses conducted by it which the Company is a party or to which the Seller is a party if any such Contract relates to does not constitute part of the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);; and
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two yearsany benefits arising therefrom);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights claims and demands of recovery, rights of setoff and rights of recoupment of every kind and whatever nature (including rights to insurance proceedswhether or not liquidated) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss Seller relating to the Purchased Assets;
(q) , including, without limitation, condemnation rights and proceeds, and all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with rights against suppliers under warranties covering any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tri State Outdoor Media Group Inc)
Purchased Assets. 3.1.1 Upon the terms and subject Subject to the conditions set out in provisions of this AgreementAgreement and specifically Section 1.2 below, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company Closing (including indirect and other forms of beneficial ownership) effective as of 12:01 a.m. on the Closing Date), Seller shall sell, convey, assign, transfer and deliver to Buyer, and in Buyer shall purchase and acquire from Seller, free and clear of any caseLiens other than Permitted Liens, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of Seller’s right, title and interest in and to the following assetsassets of Seller, but excluding all other than the Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):
(a) the accounts receivable of the Business as a going concernset forth on Schedule 1.1(a) (“Accounts Receivable”), together with any unpaid financing charges accrued thereon and the benefit of the security relating to such Accounts Receivable and listed on Schedule 1.1(a);
(b) the goodwillprepaid expenses, if any, security deposits and refunds relating to the BusinessBusiness and listed on Schedule 1.1(b);
(c) all Accounts Receivablethe furniture, notes receivable fixed assets, fixtures, instruments, tenant improvements, equipment, computers, telephones, facsimile machines, machinery, motor vehicles and other amounts receivable from third parties, including customers tangible personal property used by Seller in the conduct of the Business and employees, and all correspondence with respect theretolisted on Schedule 1.1(c);
(d) all interests Seller’s inventory of raw materials, work in leased or subleased real estate process, active pharmaceutical ingredient and finished drug products related to the Business and listed on Appendix 3.1.1(dSchedule 1.1(d); [*] Certain confidential information contained in this document, including marked by brackets, has been omitted and filed separately with the Real Property Leases;Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. Confidential treatment has been requested with respect to this information.
(e) all Inventory, work in progress and raw materialSeller Intellectual Property;
(f) all Fixed Assets, including such assets scheduled goodwill relating to the Business as a going concern and all telephone and facsimile numbers used in the Business and listed on Appendix 3.1.1(fSchedule 1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities copies of all data, files, books and subject to Sections 3.1.5records (including employment, 3.6 billing and 11.6financial and accounting records), all rights business plans, strategies, marketing and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the other documents and information maintained by Seller is a party if any such Contract relates and relating to the BusinessBusiness (whether in print, electronic or other media and including, without limitation each Material Agreement limitation, all customer and supplier and prospective customer and supplier lists and files, and referral sources), and the computer software and databases;
(h) all of the rights of Seller under the contracts, commitments, leases, licenses and agreements listed on Schedule 1.1(h) (collectively, the “Assigned ContractsAcquired Agreements”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records Actions of Taxes any kind (including, but not limited to, rights to insurance proceeds and employer’s fees relating rights under and pursuant to all warranties, representations and guarantees made by customers of Seller or suppliers of products, services, materials or equipment to Seller) pertaining to or arising out of the Employees duly completed and up Purchased Assets, subject to date, covering the three (3Section 1.2(i) financial years preceding the Accounts Datebelow;
(j) all lists and records pertaining to customer accounts (whether past or current)the extent transferable, suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two yearsPermits listed on Schedule 1.1(j);
(k) a list copies of potential customers of all personnel records relating to the Business Continuing Employees that Seller is required by law to which outstanding quotations have been given as at the Closing Date;retain in its possession; and
(l) a list of unfulfilled orders copies of the Business as at the Closing Date;
(mbooks and records set forth in Section 1.2(c) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate relating to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon the terms and subject Subject to the conditions set out in this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale this Agreement and other technical material and sales matter which relate to in consideration of the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies obligations of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies as provided herein, and the Company shall retain copies except as otherwise provided in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this AgreementSection 1.2, at the Closing, the Seller agrees to sell shall sell, assign, transfer, deliver and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly convey to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights free and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement clear of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such ContractLiens except Permitted Liens, and the Buyer shall paypurchase, defendacquire and take assignment and delivery from the Seller, discharge the Seller's right, title and perform interest in, to and under the Businesses and certain assets, properties and rights that are related to or used for the Businesses (the "Purchased Assets"), including the following:
(i) the Equipment set forth in Schedule 1.1(a)(i);
(ii) the Inventories set forth in Schedule 1.1(a)(ii);
(iii) the Accounts Receivable set forth in Schedule 1.1(a)(iii);
(iv) the parcels of land set forth in Schedule 1.1(a)(iv), together with all Liabilities privileges and easements appurtenant thereto and all buildings, plants, facilities, installations, fixtures and other structures and improvements situated or located thereon or attached thereto (collectively, the "Purchased Real Property");
(v) the Easements set forth in Schedule 1.1(a)(v);
(vi) the Purchased Proprietary Rights set forth in Schedule 1.1(a)(vi) (the "Purchased Proprietary Rights");
(vii) the Vehicles set forth in Schedule 1.1(a)(vii);
(viii) all prepaid expenses, deposits made by the Seller, and deposits made by customers relating to the Businesses;
(ix) any goodwill associated with the Businesses;
(x) the equipment leases and other leases set forth in Schedule 1.1(a)(x) (collectively, the "Personal Property Leases");
(xi) the Contracts set forth in Schedule 1.1(a)(xi),including, but not limited to, all customer purchase orders;
(xii) the Permits set forth in Schedule 1.1(a)(xii)
(xiii) copies of all financial books and records necessary for the operations of Businesses and the Purchased Assets;
(xiv) all rights under such warranties relating to the Equipment;
(xv) copies of all employee records;
(xvi) all customer lists;
(xvii) all Benefit Plans set forth in Schedule 1.1(a)(xvii); and
(xviii) all other assets used in the Businesses. Items (x) and (xi) are referred to herein collectively as the "Purchased Contracts."
Appears in 1 contract
Purchased Assets. 3.1.1 Upon the terms and subject Subject to the conditions set out provisions of this Agreement and except as expressly excluded in this Agreement, at the ClosingSection 2.2 below, the Company agrees Sellers agree to sell and the Buyer agrees to purchase purchase, at the Closing, all assets, of the properties, rights, titles assets and interests business of the Sellers of every kind or nature ownedand description, leased, licensed or otherwise held by the Company (including indirect tangible and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real real, personal or personal mixed, and wherever located, including including, without limitation limitation, all assets shown or reflected on the Base Balance Sheet and all of the following Sellers' good will and the exclusive right to use the names of the Sellers as all or part of a trade or corporate name. The assets, property and business of the Sellers to be sold to and purchased by the Buyer under this Agreement are hereinafter sometimes referred to as the "PURCHASED ASSETS." The Purchased Assets include, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2are not limited to, the “Purchased Assets”):following assets and business of Sellers:
(a) all of the Business Receivables, machinery and equipment and other assets shown on the Base Balance Sheet plus any assets listed on SCHEDULE 2.1(a) hereto and any assets owned by the Sellers which previously have been written off, with only such changes with respect to such Receivables as a going concernhave occurred since the date of the Base Balance Sheet and such changes to such machinery, equipment and other assets as have occurred in the ordinary course of the Sellers consistent with past practice since the date of the Base Balance Sheet;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after interests of the Closing existing under all Contracts Sellers in and to which the Company is a party or to which the Seller is a party if executory contracts, commitments, plans, agreements, understandings, licenses and personal property leases, other than in respect of any such Contract relates to the BusinessRetained Liability, including, without limitation each Material Agreement (collectivelylimitation, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry listed on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.SCHEDULE 2.1
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Subject to the terms and subject conditions of this Agreement and pursuant to Sections 363 and 365 of the conditions set out in this AgreementBankruptcy Code, at effective as of the Closing, Sellers shall sell, convey, transfer, assign and deliver to Buyer, free and clear of all Liens except the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing DatePermitted Liens, and Buyer shall purchase, all right, title and interest in any case, belonging and to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 assets of Sellers (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):
(a) All tangible personal property of the Business as a going concernBusiness, wherever located, including, but not limited to, all machinery, equipment, tools, fixtures, parts, supplies, furniture, furnishings, motor vehicles, Inventory and computers, including the tangible personal property which is listed on Schedule 2.1(a);
(b) the goodwill, if any, relating to the BusinessAll Leased Real Property which is listed on Schedule 2.1(b);
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretoThe Transferred Intellectual Property Rights;
(d) all interests in leased or subleased real estate All of the customer Contracts listed on Appendix 3.1.1(dSchedule 2.1(d) and all rights of any kind relating thereto including rights to payments thereunder (the “Customer Contracts”), including the Real Property Leases;
(e) All of the vendor Contracts listed on Schedule 2.1(e) and all Inventory, work in progress and raw materialrights of any kind relating thereto (the “Vendor Contracts”);
(f) All Contracts listed on Schedule 2.1(f) and all Fixed Assets, including such assets scheduled on Appendix 3.1.1(frights of any kind relating thereto (the “Other Contracts”);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5All Permits listed on Schedule 2.1(g), 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates but only to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”)extent such Permits may be transferred under applicable Law;
(h) subject to Section 11.6All of Seller's rights under warranties, indemnities and all similar rights against third parties to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached heretoextent related to any Purchased Assets;
(i) all records of Taxes All prepaid expenses, credits, advance payments, security, deposits, charges, sums and employer’s fees relating to all the Employees duly completed and up extent related to date, covering the three (3) financial years preceding the Accounts Dateany Purchased Assets;
(j) Originals, or where not available, copies, of all lists books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority), sales material and records, strategic plans, internal financial statements and marketing and promotional surveys, material and research, that relate to the Business or the Purchased Assets, other than books and records pertaining to customer accounts (whether past or currentset forth in Section 2.2(e), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);; and
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for All goodwill associated with any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included described in the definition of Purchased Assetsforegoing clauses.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out As used in this Agreement, at the Closingterm "Purchased Assets" means the Business and (i) substantially all of the assets utilized in operating and conducting the Business; such assets are set forth on Exhibit A-1 hereto, (ii) all accounts, files and other information relating to the Company agrees to sell and the Buyer agrees to purchase clients set forth on Exhibit A-2, (iii) all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company accounts receivable (including indirect payments to Seller in payment thereof), ▇▇▇▇▇▇▇▇, work-in-process and other forms payments in respect of beneficial ownershipclient transactions generated or created during the period from March 1, 1997 through and including the Closing Date, (iv) without limiting the provisions of the foregoing clause (iii), any and all amounts that remain uncollected with respect to the accounts receivable set forth on Exhibit A-3 as of the Closing DateDate and (v) any and all amounts collected by the Seller with respect to the accounts receivable set forth on Exhibit A-3; provided that, with respect to Exhibit A-3, the Purchased Assets shall not include monies collected by the Seller on account of accounts receivables generated with respect to transactions entered into prior to October 1, 1996. Exhibit A-1 sets forth the equipment, software and in any case, belonging to or intended to be used other assets included in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all Purchased Assets. Exhibit A-2 sets forth a list of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) client accounts of the Business as of the date hereof (and also includes a going concern;
(b) list of trading partners for each client). Exhibit A-3 sets forth the goodwill▇▇▇▇▇▇▇▇, accounts receivables and amounts paid in respect of such accounts receivables for the period commencing October 1, 1996 and ending April 2, 1997. Seller shall cause all liens, claims, charges and encumbrances, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for upon any of the foregoing Purchased Assets to be terminated or otherwise discharged at or prior to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded LiabilitiesClosing.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (New Paradigm Software Corp)
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out in of this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of on the Closing Date, Seller shall sell, transfer, assign, convey and in any casedeliver to Buyer, belonging to or intended to be used in and Buyer shall purchase from Seller, free and clear of all Encumbrances (except for Permitted Encumbrances), substantially all of the BusinessBusiness and substantially all of the assets and properties owned by Seller of every kind and description, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assetsreal, but excluding all Excluded Assets and Excluded Liabilitiespersonal or mixed, as further detailed below and on Appendix 3.1.1 (together tangible or intangible, used primarily in connection with the assets, properties, rights, titles and interests set forth in Section 3.1.2, Business (herein collectively called the “Purchased Assets”):), including, without limitation, all right, title and interest of Seller in, to and under:
(a) all raw materials, supplies, work-in-process and other materials included in the inventory of the Business as a going concernlisted in the Supply Chain Management Materials subject to ordinary course of business fluctuations;
(b) the goodwill, if any, relating to the BusinessOwned Real Property listed in Schedule 5.10;
(c) all Accounts Receivablethe Tangible Property, notes receivable including without limitation the machinery, equipment, vehicles, furniture and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretopersonal property listed or referred to in Schedule 5.12;
(d) all interests the personal property leases listed in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property LeasesSchedule 5.13;
(e) all Inventory, work the Selected Agreements listed or described in progress and raw material;Schedule 5.18; Table of Contents
(f) all Fixed Assetsof Seller’s rights, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets claims or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates causes of action against third parties relating to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject Purchased Assets arising out of transactions occurring prior to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(mg) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff books and rights of recoupment of every kind and nature records (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations data and other certifications required for the Business;
(pinformation stored on discs, tapes or other media) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss Seller relating to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(th) Software licence listed in Schedule 2.1(h); and
(i) Seller’s interest in and to all telephone, telex and telephone facsimile numbers and other assets of any kind directory listings allocated or nature of the Company, as applicable, which relate relating to the Business other than the Excluded Assets or Excluded LiabilitiesOwned Real Property.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon the terms and subject The assets to be conveyed to the conditions set out in this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held Purchaser by the Company Seller (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):) are all of the assets and properties that comprise the Business (excluding the Excluded Assets) including the following:
(a) All accounts receivable related to the Business as a going concernand owed to the Seller at the Closing Date and all notes, bonds and other evidences of indebtedness of and rights to receive payments from any person held by the Seller and related to the Business;
(b) All Leases;
(c) All Tangible Property and all Inventory;
(d) All Proprietary Rights, including, without limitation, those identified on Schedule 2.14;
(e) All right, title and interest of the goodwillSeller in, if anyto and under all licenses, permits, orders, certificates or approvals relating to the Business, to the extent assignable;
(f) All right, title and interest of the Seller in, to and under all contracts, purchase orders and sales orders and all outstanding offers or solicitations made by or to the Seller related to the Business (the “Assumed Contracts”), to the extent assignable; it being understood that Schedule 1.2(f) identifies all such Assumed Contracts;
(g) All rights, claims, causes of action and choses in action relating to the Business or the Purchased Assets;
(h) Pre-paid expenses of the Seller relating to the Purchased Assets and the Business as set forth on the Final Closing Statement;
(i) All books of account, general, financial, accounting and personnel records, files, invoices, customers and suppliers lists and other data owned or used by the Seller relating to the Purchased Assets;
(j) All cash and cash equivalents relating to the Business;
(ck) all Accounts Receivable, notes receivable The Seller’s tradename and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;trademarks; and
(dl) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress All other assets and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities goodwill and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which going concern value of the Seller is a party if any such Contract relates relating to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon On the terms and subject to the conditions set out in of this Agreement, at the ClosingClosing (as defined in Article IV hereof), Seller shall transfer, convey and assign to Buyer, and Buyer shall purchase and acquire from Seller, all of the Company agrees to sell and the Buyer agrees to purchase all assets, propertiesproperties and rights of Seller, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assetsreal, but excluding all Excluded Assets personal and Excluded Liabilitiesmixed, tangible and intangible, as further detailed below and on Appendix 3.1.1 the same shall exist immediately prior to the Closing (together with the assets, properties, rights, titles and interests except for those assets set forth in Section 3.1.21.2 hereof), including, but not limited to, the “Purchased Assets”):following:
(a) the Business as a going concernall machinery, equipment, transportation equipment, tools, dies and molds, vehicles, furniture, fixtures, office equipment and supplies and other items of tangible personal property and all warranties relating thereto;
(b) the goodwillall real property and interests therein, if anyincluding land, relating to the Businessbuildings, structures and improvements located thereon, fixtures contained therein, appurtenances attached thereto, and leasehold improvements;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third partiesinventories, including customers but not limited to, all raw materials, work-in-process, intermediates, finished products, supplies, spare parts, packaging and employees, shipping containers and all correspondence with respect theretomaterials;
(d) all interests prepaid expenses, advances, escrows and deposits of Seller, the benefit of which will accrue to Buyer, except for those that specifically relate to Excluded Assets (as defined in leased Section 1.2) or subleased real estate listed on Appendix 3.1.1(dExcluded Obligations (as defined in Section 2.2), including the Real Property Leases;
(e) all Inventoryrights of Seller under all contracts, work in progress licenses, leases, permits, commitments, purchase orders, sales orders and raw material;other agreements which are described on Schedule 1.1(e) attached hereto; ---------------
(f) all Fixed Assetscash (including, including such assets scheduled on Appendix 3.1.1(f)without limitation, bank accounts, ▇▇▇▇▇ cash and escrow and other accounts) and accounts and notes receivable;
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights of Seller in and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates insurance and indemnity claims relating to the Purchased Business, including, without limitation each Material Agreement the Purchased Assets (collectively, as defined in Section 1.1) or the “Assigned Contracts”Assumed Obligations (as defined in Section 2.1);
(h) subject to Section 11.6all patents, patent applications, trade names, fictitious or assumed names, service marks, service ▇▇▇▇ applications, trademarks, trademark applications, copyrights, copyright applications, patterns, inventions, trade secrets, logos, slogans, proprietary processes and formulae, license agreements, research and development projects and reports, market reports, product or customer surveys, and all rights to other proprietary, technical and other information and intellectual property rights, whether patentable or unpatentable (collectively, the employment of "Intellectual Property"), and the Employeesgoodwill associated therewith, including including, but not limited to, those individuals set forth in Appendix 3.1.1(hdescribed on Schedule 1.1(h) attached hereto;; ---------------
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed files, including, but not limited to, property records, production records, product designs, engineering records, purchasing and up to datesales records, covering the three correspondence with suppliers and customers (3) financial years preceding the Accounts Dateboth actual and prospective), personnel and payroll records, accounting records, plant records, mailing lists, customer and vendor lists and records, sales aids, and computer programs, records, files and related software;
(j) all lists stationery, purchase orders, forms, invoices, labels, shipping material, catalogs, brochures, art work, photographs, advertising materials, merchandising and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years)display materials;
(k) a list of potential customers of to the Business to extent transferable, all governmental licenses, permits, authorizations and approvals, which outstanding quotations have been given as at the Closing Date;are described on Schedule 1.1(k) --------------- attached hereto; and
(l) a list all shares of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) stock or other securities owned by Seller which relate to the Purchased Business, except for any which are described on Schedule 1.1(l) --------------- attached hereto. For convenience of reference, the assets, properties and rights to be transferred, conveyed and assigned to Buyer hereunder, exclusive of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of are herein collectively called "Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts."
Appears in 1 contract
Purchased Assets. 3.1.1 Upon the terms and subject Subject to the conditions set out in provisions of this Agreement, at the Closing, the Company Seller agrees to sell sell, and the Buyer agrees to purchase purchase, at the Closing (as defined in Section 3.1 hereof), the Business as a going concern and all assets, properties, rights, titles and interests of the Seller’s assets of every kind or nature ownedand description as the same now exist, leased, licensed or otherwise held by other than the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, (as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth defined in Section 3.1.2, 1.2 hereof). The assets purchased hereunder (the “Purchased Assets”):) shall include, without limitation, the following rights, assets and properties:
(ai) All of the assets reflected on the unaudited balance sheet of the Seller dated March 5, 2006 (the “Base Balance Sheet”), other than those assets which are specifically identified as Excluded Assets, with only such changes therein as have occurred in the ordinary course of the Business since March 5, 2006. Such assets shall include, without limitation, all trade and other accounts receivable (other than intercompany receivables due from the Seller’s Affiliates (as a going concerndefined in Section 1.2(ii)), inventories wherever located, including raw materials, work in process, finished goods, and merchandise in transit, all prepaid expenses, all machinery, equipment, fixtures and furniture, motor vehicles, all real estate and the buildings, improvements and fixtures thereon, all leaseholds and leasehold improvements thereon, and deposits;
(bii) all rights and interests of the goodwillSeller in and to any contract, if anyagreement, relating indenture, note, bond, loan, instrument, lease, conditional sales contract, mortgage, license, franchise agreement, binding commitment or other arrangement, written or oral (“Contracts”), including, without limitation, those Contracts listed on Schedules 4.10(i), 4.10(ii), 4.11(i), 4.11(ii), 4.11(iii) and 4.12 hereto, excluding, however, those Contracts which are specifically identified as Excluded Assets;
(iii) all of the Seller’s books, records and accounts, data, correspondence and any confidential information relevant to the operation of the Business in any media including, without limitation, copies of personnel records pertaining to each employee who accepts employment by the Buyer, accounting records, customer and vendor lists and records, management reports, third party consultant’s reports and operating efficiency reviews, but excluding such books, records and data specifically and primarily related to Excluded Assets;
(iv) all of the Seller’s Intellectual Property Rights, but excluding the Intellectual Property Rights specifically identified as Excluded Assets, wherein Intellectual Property rights shall mean all rights in any of the following: (A) inventions, business methods, processes, know-how, techniques and technology and improvements thereto, and patents, patent applications and patent disclosures; (B) trademarks, service marks, trade dress, logos, brand names, trade or corporate names, mastheads, slogans and other source indicators, all applications and registrations in any jurisdiction pertaining thereto, and all goodwill associated therewith; (C) copyrightable works in any media, including computer programs, drawings, advertising, marketing or promotional materials, textual work, publications, journals and periodicals, and all applications, registrations and renewals therefor; (D) Internet Web sites, Web pages and domain names; (E) billing, accounting and other similar management information systems and databases and (F) trade secrets and confidential, proprietary or non-public information and documents, including advertiser, supplier, customer, user and subscriber lists and all materials or tangible media embodying or incorporating the foregoing (collectively, “Intellectual Property Rights”);
(v) all telephone numbers (including without limitation, toll free numbers), fax numbers, email addresses and similar numbers or addresses used in the Business;
(cvi) all Accounts Receivablelockbox or other accounts to which collections from customers of, notes receivable and or other amounts receivable from third partiespayments to, including customers and employeesthe Seller are paid, provided, however, that (A) any payments deposited to such accounts prior to Closing, and all correspondence with respect thereto;
(dB) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including any payments made to such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after accounts following the Closing existing under all Contracts to for services and products provided by the Seller’s Affiliates and which the Company is a party or to which the Seller is a party if any such Contract relates do not relate to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”)shall be Excluded Assets;
(hvii) subject all of the Seller’s right, title and interest in, to Section 11.6and under third party warranties, all rights to the employment of the Employeesextent assignable, including other than those individuals set forth in Appendix 3.1.1(h) attached heretowarranties related specifically to Excluded Assets;
(iviii) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list Seller’s permits, licenses, orders, ratings and approvals of any and all Governmental Authorities which relate to the customers of the Business during the last two years);
(k) a list of potential customers of Purchased Assets or their use in the Business to which outstanding quotations have been given as at the Closing Date;extent that the same are transferable; and
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(mix) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff set off and rights of recoupment, including, without limitation, any insurance claim paid or payable under any property or casualty insurance policy in respect of any damage suffered or loss incurred with respect to the Purchased Assets between the date hereof and the Closing Date, but expressly excluding claims, deposits, prepayments, refunds, causes of action, rights of recovery, rights of set off and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to in connection with Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed Retained Liabilities and matters described in Appendix A and included in the definition of Purchased AssetsSchedule 4.16.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon the terms and subject Subject to the conditions set out in provisions of this Agreement, at the Closing, the Company agrees to sell Agreement and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) except as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth expressly excluded in Section 3.1.22.2 below, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase purchase, at the Danish AssetsClosing, as exhaustively listed in Appendix A all of the properties, assets and included business of each Seller of every kind and description, tangible and intangible, real, personal or mixed, and wherever located, including, without limitation, all assets shown or reflected on the Base Balance Sheet and arising since the Base Balance Sheet Date in the definition ordinary course, and all of Purchased Assetseach Seller's good will. The assets, property and business of the Sellers to be sold to and purchased by the Buyer under this Agreement are hereinafter sometimes referred to as the "PURCHASED ASSETS.
3.1.3 " The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 Ifinclude, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business but are mistakenly paid directly to the Seller or the Companynot limited to, the Company shall refund said amount forthwith to following assets and business of the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that Sellers:
(a) all of the Parent or Receivables, Inventory, machinery and equipment and other assets shown on the Buyer Base Balance Sheet plus any assets listed on SCHEDULE 2.1(a) hereto and any assets owned by mistake pays any amount Seller which should previously have correctly been paid by written off, with only such changes with respect to such Receivables and Inventory as have occurred in the Seller or ordinary course of the CompanySellers' business consistent with past practice since the date of the Base Balance Sheet and such changes to such machinery, equipment and other assets as have occurred in the Parent or ordinary course of the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days Sellers' business consistent with past practice since the date of such payment or the Base Balance Sheet;
(b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by interests of the Seller or the CompanySellers in and to executory contracts, as the case may becommitments, to the Buyer without plans, agreements, understandings, licenses and personal property leases, other than in respect of any additional compensation to the Company or the Seller. SimilarlyRetained Liability, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may beincluding, without any penalty limitation, those listed on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.SCHEDULE 2.1
Appears in 1 contract
Purchased Assets. 3.1.1 Upon The Purchased Assets are those assets of Seller used in the terms Business listed below:
(a) all of the billboard displays and subject other out-of-home advertising structures, together with all components, fixtures, parts, appurtenances, and equipment attached to or made a part thereof that are existing, under construction or for which Seller has any rights (including at least 448 structures and 1,391 sign faces or places on structures for sign faces) (collectively, the "Structures"), including, without limitation, all of the Structures listed on Schedule 2.2(a); 6
(b) all leases, licenses, easements, other rights of ingress or egress, and all other grants of the right to place, construct, own, operate or maintain billboard displays and other out-of-home advertising structures (including, without limitation, the Structures) on land, buildings and other real property owned by third parties, and all rights therein (collectively, the "Site Leases"), including, without limitation, those Site Leases listed on Schedule 2.2(b);
(c) all of the rights under existing and pending sales and advertising contracts associated with the Business, all rights to the conditions set out in this Agreement, at advertising copy displayed on the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) Structures as of the Closing Date, all other rights to collect and in any case, belonging to or intended to be used in receive income from the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all use of the following assets, but excluding all Excluded Assets Structures and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwillsecurity deposits, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretothereto (collectively, the "Advertising Contracts"), including, without limitation, all of the Advertising Contracts listed on Schedule 2.2(c);
(d) all interests state and local licenses or permits/tags which Seller has or has an interest in leased or subleased real estate with respect to the Business and all other Governmental Authorizations that are required for the operation of the Business (collectively, the "Permits"), including, without limitation, all of the Permits listed on Appendix 3.1.1(dSchedule 2.2(d), including the Real Property Leases;
(e) the real property owned in fee by Seller and used in the Business and any rights therein, and all Inventorybuildings, work in progress fixtures, structures and raw materialother improvements located thereon, listed on Schedule 2.2(e) ("Included Real Property");
(f) all Fixed Assetsaccounts receivable, prepaid items and other assets of Seller as of the Closing Date used in the Business that would be reflected as current assets on a balance sheet of Seller as of the Closing Date prepared in a manner consistent with Section 3.10(a), but excluding cash and cash equivalents (including such assets scheduled on Appendix 3.1.1(fcertificates of deposit);
(g) except for any Excluded Assets or Excluded Liabilities all pertinent Books and subject to Sections 3.1.5Records;
(h) all tangible personal property owned by Seller and used in the operation of the Business (collectively, 3.6 and 11.6the "Tangible Personal Property"), including, without limitation, all rights and obligations arising after of the Closing existing under Tangible Personal Property listed on Schedule 2.2(h);
(i) all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to supplies used in connection with the Business, including, without limitation each Material Agreement (collectivelylimitation, the “Assigned Contracts”);
(h) subject to Section 11.6panels, all rights to the employment of the Employeesmoldings, including those individuals steel components, sections, parts, paint and painting supplies, appurtenances, equipment, electrical connections, wiring and lighting components, as set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Dateon Schedule 2.2(i);
(j) all lists and records pertaining the Intangible Property (it being understood that as to customer accounts (whether past or current)Seller's trade name "Unisign", suppliers, distributors, personnel and agents Buyer shall be entitled to use such name in connection with its operation of the Business (including without limitation a list Purchased Assets and Seller shall be entitled to retain the use of all this name as its corporate name and in connection with the customers operation by Seller of the Business during the last two years);
(k) a list of potential customers of the Business to those businesses conducted by it which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as does not constitute part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tri State Outdoor Media Group Inc)
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of The Purchased Assets shall include the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):items:
(a) the Business as a going concernall furniture, fixtures, equipment (including office equipment), machinery, parts, computer hardware, automobiles and trucks, inventory, supplies, parts and all other tangible personal property of Seller (“Tangible Assets”);
(b) the goodwillall leasehold interests and leasehold improvements created by all leases, if anyincluding capitalized leases, relating to the Businessof personal or real property under which Seller is a lessee or lessor;
(c) all Accounts Receivabletrade accounts receivable, notes receivable receivable, negotiable instruments and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretochattel paper;
(d) all interests deposits and rights with respect thereto in leased or subleased real estate listed on Appendix 3.1.1(d), including connection with the Real Property LeasesBusiness and all rebates due from vendors;
(e) subject to Section 1.5 and Section 1.6, all Inventorycontracts, work in progress claims and raw materialrights (and benefits arising therefrom) relating to or arising out of the Business, and all rights against suppliers under warranties covering any of the Tangible Assets;
(f) all Fixed Assetssales orders and sales contracts, including such assets scheduled on Appendix 3.1.1(f)purchase orders and purchase contracts, quotations and bids generated by the operation of the Business;
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement Intellectual Property (collectively, the “Assigned Contracts”as defined in Section 5.16);
(h) subject to Section 11.61.5, all rights to the employment of the Employeeslicense agreements, including those individuals set forth in Appendix 3.1.1(h) attached heretodistribution agreements, sales representative agreements, service agreements, supply agreements, franchise agreements, computer software agreements and technical service agreements;
(i) all customer lists, customer records of Taxes and employer’s fees information relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts DateBusiness;
(j) all lists books and records pertaining relating to customer the Business, including blueprints, drawings and other technical papers, payroll, employee benefit, accounts (whether past or current)receivable and payable, suppliersinventory, distributorsmaintenance and asset history records, personnel ledgers and agents books of the Business (including without limitation a list of original entry, all the customers of the Business during the last two years)insurance records and Permit files;
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claimsrights in connection with prepaid expenses, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff advances and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date credits with respect to damage, non-conformance of or loss to the Purchased Assets;
(ql) all plans, instructional sales and promotional material, sales publications, advertising materials, terms catalogues and conditions of sale and other technical material and sales matter which relate advertising literature relating to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(rm) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books transferable Permits (other than minute books relating to board meetings, shareholders’ meetings and statutory booksas defined in Section 5.9), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(tn) all other assets of any kind or nature of the Company, as applicable, which relate lock boxes relating to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contractsaccount debtors remit payments.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mediware Information Systems Inc)
Purchased Assets. 3.1.1 Upon the terms and subject Subject to the conditions set out in provisions of this Agreement, at the Closing, the Company agrees to sell Agreement and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) except as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth expressly excluded in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing2.2 below, the Seller agrees to sell and the Buyer agrees to purchase purchase, at the Danish AssetsClosing, as exhaustively listed in Appendix A all of the properties, assets and included business of the Seller of every kind and description, tangible and intangible, real, personal or mixed, and wherever located, including, without limitation, all assets shown or reflected on the Base Balance Sheet and arising since the Base Balance Sheet Date in the definition ordinary course, other than those assets listed and described in Section 2.2 below as Excluded Assets. The assets, property and business of Purchased Assetsthe Seller to be sold to and purchased by the Buyer under this Agreement are hereinafter sometimes referred to as the "PURCHASED ASSETS.
3.1.3 " The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 Ifinclude, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business but are mistakenly paid directly to the Seller or the Companynot limited to, the Company shall refund said amount forthwith to following assets and business of the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that Seller:
(a) all of the Parent or Receivables, Inventory, machinery and equipment and other assets shown on the Buyer by mistake pays Base Balance Sheet plus any amount which should assets listed on Schedule 2.1(a) hereto, with only such changes with respect to such Receivables and Inventory as have correctly been paid by occurred since the date of the Base Balance Sheet and such changes to such machinery, equipment and other assets as have occurred in the ordinary course of the Seller or consistent with past practice since the Company, date of the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or Base Balance Sheet;
(b) all rights and interests of the Seller in and to executory contracts, commitments, plans, agreements, understandings, licenses and personal property leases, other than in respect of any Retained Liability, any Expected Assigned Contracts or the Company by mistake pays any amount which should have correctly been paid by the Parent or the BuyerRetained Contracts, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may beincluding, without any penalty limitation, those listed on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.Schedule 2.1
Appears in 1 contract
Purchased Assets. 3.1.1 Upon the terms and subject Subject to the conditions set out provisions of this Agreement and except as expressly excluded in this Agreement, at the ClosingSection 1.2 hereof, the Company agrees Sellers agree to sell and the Buyer agrees to purchase all assetspurchase, propertiesat the Closing (as defined in Section 3.1 hereof), Sellers' rights, titles title and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect interest in and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets properties and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwill, if any, rights relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates exclusively to the Business, includingtangible and intangible, without limitation each Material Agreement wherein located, as the same may exist on the date of the Closing (collectively, the “Assigned Contracts”);
"Purchased Assets") including, without limitation, the following: (hi) subject to Section 11.6all of Sellers' rights, all rights to the employment of the Employees, including title and interest in those individuals set forth linguistic and other software products listed in Appendix 3.1.1(h) attached hereto;Schedule 1.1
(i) all records of Taxes and employer’s fees relating to all hereto (the Employees duly completed and up to date, covering the three "Software Products"); (3) financial years preceding the Accounts Date;
(jii) all lists of Sellers' rights, title and records pertaining to customer accounts interest in all copyrights associated with the Software Products (whether past or currentthe "Copyrights"), suppliersincluding those registered copyrights listed in Schedule 1.1(ii) hereto; (iii) all of Sellers' rights, distributorstitle and interest in and to the patents and patent applications listed in Schedule 1.1(iii) (the "Patents and Patent Applications"), personnel including any patents issuing therefrom, and agents any reissues, reexaminations, divisions, continuations in whole or in part, extensions or foreign counterparts thereof; (iv) all of Sellers' rights, title and interest in and to the trademarks and common law trademark rights associated exclusively with the Software Products (the "Trademarks"), including those registered trademarks and trademark applications listed in Schedule 1.1(iv); (v) all of Sellers' rights, title and interest in and to any and all technical documentation reflecting or describing or otherwise related exclusively to any of the Software Products (the "Technical Documentation"), including source codes, object codes, descriptions, data, instructions and records; (vi) all of Sellers' rights under those customer licenses and agreements (the "Customer Contracts") and those supply contracts (the "Supply Contracts") which relate exclusively to the Business; (vii) those prepaid expenses listed in Schedule 1.1(vii) hereto (the "Prepaid Expenses"); (viii) all of Sellers' rights, title and interest in those accounts receivable which have arisen in the ordinary course of the Business (including without limitation a list of all the customers and which are outstanding as of the Business during date of the last two yearsClosing and which have not been outstanding for more than ninety (90) days from the due date thereof (the "Accounts Receivable");
; (kix) a list all of potential customers the Sellers' customer lists, marketing information, market data and sales information relating exclusively to the Software Products and the Business; (x) all of the Sellers' goodwill pertaining exclusively to the Software Products and the Business; and (xi) any and all of the Sellers' permits, licenses, orders, ratings and approvals of any and all U.S. and foreign governmental or regulatory authorities which exclusively relate to the Purchased Assets or their use in the Business to which outstanding quotations have been given as at the Closing Date;
extent that the same are transferable; and (lxii) a list of unfulfilled orders all of the Business as at the Closing Date;
(m) all claimsSellers' right, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff title and rights of recoupment of every kind interest in and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(nassets listed on Schedule 1.1(xii) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilitieshereto.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Inso Corp)
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out in of this Agreement, at the Closing, Sellers shall sell, transfer, assign, convey and deliver to Purchaser, and Purchaser shall purchase from Sellers, on a going concern basis, free and clear of all Liens (except for Permitted Liens), all of the Company agrees to sell business and operations of Sellers and all of the Buyer agrees to purchase all assets, properties, rights, titles assets and interests properties of Sellers of every kind or nature ownedand description, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assetsreal, but excluding all Excluded Assets and Excluded Liabilitiespersonal or mixed, tangible or intangible, as further detailed below and the same shall exist on Appendix 3.1.1 the Closing Date (together with herein collectively called the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “"Purchased Assets”):"), including (subject to Sections 3.4 and 5.17) all right, title and interest of Sellers in, to and under:
(a) the Business as a going concernbank deposits and cash and cash equivalents of Sellers;
(b) all of the goodwillassets reflected on the Reference Balance Sheet and the balance sheet of IPC and its consolidated Subsidiaries contained in the Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, if any2003 as filed with the SEC on August 14, relating to 2003 (other than the Businesscapital stock of IP Gas), except those disposed of or converted into cash after the date of such balance sheet in the ordinary course;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretoaccounts receivable;
(d) all interests raw materials, supplies, work-in-process, finished goods and other materials included in leased the inventory of or subleased real estate listed on Appendix 3.1.1(d), including owned by each Seller or used in the Real Property LeasesBusiness;
(e) all Inventory, work Permits (excluding certificates of public convenience and necessity issued by the ICC to IPC) held by each Seller or used in progress and raw materialthe Business;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f)the IPC Properties;
(g) except for any Excluded Assets all Intellectual Property owned by each Seller or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to used in the Business, includingincluding the name "Illinois Power Company" or any related or similar tradenames, without limitation each Material Agreement (collectivelytrademarks, service marks or logos to the “Assigned Contracts”)extent the same incorporate the name "Illinois Power" or any variation thereof;
(h) subject to Section 11.6, all rights to Software owned by each Seller or used in the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached heretoBusiness;
(i) all records of Taxes and employer’s fees relating Contracts to all which any Seller is a party or which are used in the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts DateBusiness;
(j) all lists collective bargaining, labor and records pertaining similar agreements, including local and side agreements, to customer accounts (whether past which any Seller is a party or current), suppliers, distributors, personnel and agents of which are used in the Business (including without limitation a list of all the customers of the Business during the last two yearsor listed on Schedule 3.13(a);
(k) a list all of potential customers each Seller's rights, claims or causes of action against third parties relating to the Business assets, properties, business or operations of either Seller arising out of transactions occurring prior to which outstanding quotations have been given as at the Closing Date;
(l) a list all surveys, books and records (including all data and other information stored on discs, tapes or other media) of unfulfilled orders Sellers except for records which by Law Sellers are required to retain in their possession, provided that Purchaser may to the extent permitted by Law retain copies of the Business as at the Closing Datesuch records;
(m) all claimscapital stock, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any membership interests or other ownership interests in each of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;Purchased Subsidiaries; and
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licensestelephone, consents, permits telex and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations telephone facsimile numbers and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilitiesdirectory listings utilized by either Seller.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Purchase Agreement (Dynegy Inc /Il/)
Purchased Assets. 3.1.1 Upon On the terms and subject to the conditions set out hereof and in this Agreement, at consideration of the ClosingPurchase Price to be paid to the Seller by the Buyer, the Company agrees to sell Buyer hereby purchases and acquires from the Seller, and the Buyer agrees Seller hereby sells, conveys, assigns, transfers and delivers to purchase all assetsthe Buyer, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assetsSeller’s right, but excluding all Excluded Assets title and Excluded Liabilities, as further detailed below interest in and on Appendix 3.1.1 (together with to the assets, properties, rights, titles rights and interests set forth in Section 3.1.2on Schedule 1.1.1, other than the Excluded Assets (collectively, the “Purchased Assets”):), free and clear of all Liens, including, without limitation, the following:
(a) all of the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable Seller’s Contracts and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Businessbusiness arrangements, including, without limitation each Material Agreement limitation, sales and purchase orders, and confidentiality, dealership, service, maintenance, vendor, customer and service agreements, all of which are listed on Schedule 1.1.1 (collectively, the “Assigned Contracts”);
(hb) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached heretoSeller’s Intellectual Property;
(ic) all records of Taxes the Seller’s Licenses and employer’s fees relating Permits to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Dateextent transferable;
(jd) all lists and records pertaining to customer accounts One Hundred Thousand Dollars (whether past or current), suppliers, distributors, personnel and agents $100,000) of Cash on Hand of the Business (including without limitation a list of all the customers of the Business during the last two years)Seller;
(ke) a list of potential customers all of the Business to which outstanding quotations have been given as at the Closing DateSeller’s advertising, marketing, training and promotional materials and all other printed or written materials;
(lf) a list of unfulfilled orders all of the Business as at the Closing Date;
(m) all claimsSeller’s lists, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations records and other certifications required for the Business;
information pertaining to suppliers and customers (p) all insuranceincluding, warranty without limitation, customer lists, customer mailing lists and condemnation net proceeds received after the Closing Date with respect to damagecustomer sales files); lists, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale records and other technical material and sales matter which relate information pertaining to the Businessaccounts, together with any platesreferral sources; books, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies correspondence and reports business and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax accounting records of the Business covering the three every kind (3) financial years preceding the Accounts Dateincluding, without limitation, all financial, business and marketing plans); and
(tg) all other assets of any kind or nature goodwill of the Company, Seller as applicable, which relate to the Business a going concern and all other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition intangible property of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon In accordance with the terms and subject to upon the conditions set out in of this Agreement, at the Closing, Sellers will sell, assign, transfer, convey and deliver to Buyer (or its designated Affiliate), and Buyer (or its designated Affiliate) will purchase, acquire and accept from Sellers, free and clear of all Liens (other than Permitted Liens), all of Sellers’ right, title and interest in the Company agrees to sell assets and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) properties existing as of the Closing Date, and in any case, belonging to or intended to be Date that are used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together connection with the assets, properties, rights, titles and interests set forth in Section 3.1.2Business (collectively, the “Purchased Assets”):), including, but not limited to, the following:
(a) the Business as a going concern;
(ball Material Contracts set forth on Schedule 1.1(a) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(hb) subject to Section 11.6all Intellectual Property owned by Sellers, including the Intellectual Property set forth on Schedule 1.1(b);
(c) all furniture, fixtures, tools, equipment, telephones, facsimile machines, smartphones, tablets, machinery, parts, spare parts and tools and tangible personal property used or held for use in the Business;
(d) IT Assets owned by Sellers that are used or held for use in connection with the Business;
(e) other than the Permits set forth on Schedule 1.2(k), all rights to the employment of the EmployeesPermits, including those individuals set forth in Appendix 3.1.1(hon Schedule 1.1(e), to the extent such Permits may be transferred to Buyer under applicable Law and by the terms of such Permits;
(f) attached heretoall prepaid expenses, credits, advance payments, security deposits, charges, sums and fees related to the Business, including those set forth on Schedule 1.1(f);
(g) all warranties, indemnities and similar rights against third parties to the extent related to any of the other categories of Purchased Assets or any Assumed Liabilities (including any Claims with respect to Purchased Assets or Assumed Liabilities);
(h) all accounts receivable and all other current assets of the Sellers other than the Cash and Cash Equivalents (except as contemplated by Section 1.1(n));
(i) all records of Taxes Books and employer’s fees relating Records related to all the Employees duly completed and up Business, including employee personnel files, to date, covering the three (3) financial years preceding the Accounts Dateextent Sellers are legally permitted to provide copies thereof to Buyer;
(j) all lists and records pertaining insurance proceeds, recoveries or refunds received by Sellers after the Closing Date in respect of any Loss related to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list or other categories of all the customers of the Business during the last two years)Purchased Assets;
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claimsClaims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refundsactions, causes of action, rights of recovery, rights of setoff recovery and rights of recoupment set-off or reimbursement of every kind and nature (including rights any kind, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent, of the Sellers with respect to insurance proceeds) which relate the assets listed in the preceding clauses of this Section 1.1 or otherwise primarily related to the Business, except for including rights to recover past, present and future Losses in connection therewith;
(l) all loans made by any Seller and any and all promissory notes, other Contracts or instruments relating thereto, including the right to receive payments in respect thereof, whether principal, interest, fees or otherwise;
(i) all attorney-client privilege and attorney work-product protection of the foregoing Sellers or their Affiliates to the extent they relate related to Excluded Assets the Business as a result of legal counsel representing the Sellers or Excluded Liabilitiesthe Business, other than in connection with the Transaction, and (ii) all documents subject to the attorney-client privilege or work-product protection described in clause (i) of this paragraph; provided, however, that Sellers and their Affiliates shall be entitled to assert (but not, for the avoidance of doubt, to waive) any such privilege or protection in connection with any third party claim not involving Buyer or its Affiliates, on the one hand, and Sellers or their Affiliates, on the other hand;
(n) all Intellectual Property Rights owned or otherwise held by Cash and Cash Equivalents in an amount equal to the Company as part of the Business;Post-Closing Cash Payment; and
(o) all licensesany other assets, consentsproperties or rights, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Businessin each case, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not primarily related to the Business; provided, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would Purchased Assets will not in fact receive all rights under such Contract, include the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such ContractsRetained Assets.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon At the Closing, subject to the terms and subject to the conditions set out in of this Agreement, at the Closing, the Company agrees will sell, transfer, convey, assign and deliver to sell the Buyer, and the Buyer agrees to will purchase from the Company, all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as non-clinical Assets of the Closing DateCompany, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assetsno others (collectively, but excluding all the Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2Assets, the “Purchased Assets”):), in each case free and clear of any Encumbrances (except for Permitted Encumbrances), including the following:
(a) any and all current assets, including all accounts receivable including Legacy Receivables and other receivables of the Business as a going concernCompany (subject to Section 2.8, other than Government Receivables), prepaid assets, inventory and all amounts collected by the Company in respect of the Government Receivables;
(b) any and all Assumed Contracts, and all Permits necessary to operate the goodwill, if any, relating to the BusinessLeased Real Property;
(c) any and all Accounts Receivableproperty (excluding real property), notes receivable leasehold improvements, machinery, equipment, fixtures and other amounts receivable from third partiestrade fixtures, including customers and employees, and all correspondence with respect theretosuch items listed on Schedule 2.1.1;
(d) any and all interests in leased or subleased real estate listed on Appendix 3.1.1(d)Supplies, including the Real Property Leasesfurniture and furnishings, office supplies, telephones, fax machines, copiers and computers and related software, and other tangible property of any kind;
(e) any and all Inventorycorporate goodwill associated with the Business, work in progress including among other things, any names associated with the Business, telephone number(s), domain name(s), and raw materialany social media or networking site profiles associated with the Company, including each of the foregoing listed on Schedule 3.10.2;
(f) any and all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employerCompany’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past rights under any express or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, implied warranties, guarantees, refunds, causes of action, indemnities and similar rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any in favor of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(qg) any and all planstrademarks, instructional service marks and promotional materialrights to the legal names set forth on Schedule 3.10.2, sales publicationsany associated assumed “d/b/a” or trade names, advertising materials, terms and conditions of sale all other Company Intellectual Property Rights;
(h) any and other technical material all operating data and sales matter which relate records relating to the Business, together with any platesincluding financial, blocks, negatives accounting and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax credit records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, listsbudgets, studies engineering and reports facility records and other printed similar documents and records; (i) any and all customer or written patient invoices, lists of suppliers and vendors, marketing research information, and sales materials which relate to the Business, to the extent such information shall be delivered on or before Closing; and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies (j) any and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded non-clinical Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money owned by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Subject to the terms and subject to the conditions set out in of this Agreement, Seller shall sell, transfer, convey, assign and deliver to Purchaser at the Closing, and Purchaser shall purchase and acquire from Seller, free and clear of all Encumbrances (other than the Company agrees to sell and Assumed Liabilities), at the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by Closing the Company (including indirect and other forms of beneficial ownership) as following assets of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 Business (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):
(a) all software rights, computer software, source code, object code and licensing agreements owned by Seller related primarily to the Business as a going concern(the “Purchased Intellectual Property”), including those set forth on Schedule 2.1(a);
(b) the goodwill, if any, relating all customer lists and records primarily related to the Business;
(c) all Accounts Receivablefurniture, notes receivable and other amounts receivable from third parties, including customers and employeesfixtures, and all correspondence with respect theretoequipment owned by Seller which is primarily related to the Business, as set forth on Schedule 2.1(c), which includes, but is not limited to, the servers and equipment located at the Call Centers;
(d) all interests in leased or subleased real estate listed contracts set forth on Appendix 3.1.1(d), including the Real Property Leases;
(eSchedule 2.1(d) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(he) subject to Section 11.6, all rights to the employment of the Employees, including those individuals primary personal computer used by each Transferred Employee as set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two yearson Schedule 2.1(e);
(kf) a list of potential customers of the Business to which outstanding quotations have been given as at corporate names, trademarks and tradenames set forth on Schedule 2.1(f) (the Closing Date“Purchased Names/Marks”);
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(mg) all claimsof Seller’s books, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff files and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate records relating to the Business, except for any operation of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permitsthose records necessary to demonstrate compliance with federal and state laws and regulations as to telemarketing activities, provided, however, that Seller shall be entitled to retain one copy of its books, files, and all material product (including software) registrations, accreditations and other certifications required for records relating to the operation of the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(th) all other assets accounts receivable of any kind or nature of the Company, as applicable, which relate Seller related primarily to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions as set out forth on Schedule 2.1(i). All schedules referenced in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets Section 2.1 shall be transferred to the Buyer delivered on the Closing Date free date hereof and clear from any Encumbrances.
3.1.4 Ifshall reflect the given assets as of November 15, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt2010. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, All such schedules shall be reimbursed accordingly but in all circumstances within five (5) Business Days updated as of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the BuyerDecember 31, the Seller or the Company2010 and delivered to Purchaser no later than December 28, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment2010.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Subject to the terms and subject to conditions of this Agreement on the conditions set out in this Agreement, Closing Date and at the ClosingEffective Time (as hereinafter defined), Seller shall sell, transfer, assign, convey and deliver to Buyer, and Buyer shall purchase and acquire from Seller, free and clear of all liens, encumbrances, claims, restrictions, security interests, obligations and liabilities ("Liens"), all of the Company agrees to sell property and the Buyer agrees to purchase all assets, properties, rights, titles and interests assets of every kind and description that are owned by Seller and used or nature owned, leased, licensed or otherwise held by for use in connection with the Company (including indirect and other forms of beneficial ownership) as operations of the Closing Date, and in any case, belonging to or intended to be used in CPRU at the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of Effective Time except the following assets, but excluding all Excluded Assets and Excluded Liabilities, (as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(ahereinafter defined) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”"Purchased Assets"), including:
1.1.1. all machinery, equipment (including clinical equipment), supplies of all kinds, computers (including screens, printers and other hardware), furniture, furnishings and accessories, shelving, storage, leaseholds and any other fixed assets currently owned by Seller for use in connection with the operations of the CPRU, including all such assets listed on Schedule 1.1.1, and all documentation associated with the use, maintenance, calibration, repair and validation of such assets;
1.1.2. all inventories (including consumables, raw materials and new and unused supplies) on hand at the CPRU;
1.1.3. all of Seller's or Parent's right, title and interest in and to the all operating leases with respect to any of the Purchased Assets, including the operating leases described in Schedule 1.1.3 (the "Operating Leases");
(h) subject to Section 11.6, all rights 1.1.4. the leasehold interest of Parent in and to the employment real property located at 3▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Leased Property") and all right, title and interest of Parent in and benefits of Parent to and under the real property lease between 3▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC and Parent dated May 4, 2007 in respect of the EmployeesLeased Property (the "Real Property Lease");
1.1.5. all prepaid expenses exclusively related to the business of the CPRU, including those individuals set forth in Appendix 3.1.1(h) attached heretoall such prepaid expenses listed on Schedule 1.1.5;
1.1.6. all customer and supplier lists, customer and supplier contact information (including telephone numbers) and purchase and sale records regarding purchases by Seller during the twelve (12) months prior to the Closing;
1.1.7. all databases, data collections, information and records with respect to volunteers of Seller (including their medical history and participation in studies, to the extent permitted by law);
1.1.8. all personnel files and records held by Seller with respect to all Hired Employees (as such term is hereinafter defined), including all records relating to (i) all records training received by such employees, (ii) insurance benefits provided by Seller (including group health, dental, life, long-term disability and short-term disability insurance benefits), and (iii) Seller’s defined contribution retirement plan under Section 401(k) of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts DateInternal Revenue Code;
1.1.9. all computer software and programs listed in Schedule 1.1.9, together with all software licenses, maintenance contracts and other agreements relating thereto (jthe "Software Contracts" and together with the Real Property Lease and the Operating Leases, the "Purchased Contracts") all lists program codes and records pertaining proprietary rights in such software and programs and all documentation and other materials related to customer accounts (whether past or current), suppliers, distributors, personnel such software and agents of the Business programs (including without limitation a list of all the customers of the Business during the last two yearsvalidation documentation);
(k) a list 1.1.10. all documentation associated with the installation, site servicing, clinical configuration and implementation of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as telemetry systems forming part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
1.1.11. all books and records (qor appropriate extracts therefrom) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate Seller relating to the Business, together with any plates, blocks, negatives Purchased Assets and similar material relating the operations of the CPRU (other than those required by law to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programsbe retained by Seller, copies of books which will be made available to Buyer) (other than minute books relating to board meetingstogether with, shareholders’ meetings and statutory booksin the case of any such information that is stored electronically, the media on which the same is stored), copies of books of accountincluding standard operating procedures (SOP's) required to operate the CPRU, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports employee manuals and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirementsstandard employee documentation;
1.1.12. all orders, permits, approvals, consents, waivers, licenses or similar authorizations (s"Licenses") of any Governmental or Regulatory Authority having any regulatory authority over the value added Tax records Seller or Parent or the CPRU, owned, held for use or used by Seller in connection with the operation of the Business covering the three (3) financial years preceding the Accounts DateCPRU, including those listed in Schedule 1.1.12; and
(t) 1.1.13. all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilitiesdescribed on Schedule 1.1.13 hereto.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bioanalytical Systems Inc)
Purchased Assets. 3.1.1 Upon Subject to the terms and subject conditions hereof, the Seller agrees to sell, assign, convey and transfer to the conditions set out in this Agreement, at Purchaser on the ClosingClosing Date and with effect therefrom as a going concern, the Company agrees to sell undertaking and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets property and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 assets of the Sellers dba Seas the Day Charters USVI (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):), moveable and immoveable, of every kind and description and wheresoever situate, other than the Excluded Assets, said Purchased Assets including, without limiting the generality of the foregoing:
(a) the Business 2.1.1. all maritime vessels as a going concernlisted in Addendum A hereto;
(b) 2.1.2. all accounts receivable, trade accounts receivable, notes receivable, book debts and other debts due or accruing due to the goodwillSeller;
2.1.3. all machinery, if anyequipment, relating moulds, dies, tools, small tools and parts including, without limitation:
2.1.3.1. maintenance items, in store materials, handling equipment, accessories and supplies;
2.1.3.2. all product inventory for use or resale;
2.1.3.3. all machinery, equipment, moulds, dyes and tools in the possession of sub- contractors or other third parties;
2.1.3.4. machinery and equipment which may fall into the category of immoveables by destination including, without limitation, docks, compressors, generators, electrical control panels, heaters and ventilators.
2.1.4. all immovables including, without limitation, all land, buildings, plants, leaseholds, improvements and fixtures owned by the Seller, including immoveables for which the Seller has an option to purchase for the Business;
(c) 2.1.5. all Accounts Receivable, notes receivable cars and other amounts receivable from third parties, including customers and employees, and vehicles of all correspondence with respect theretokinds of the Seller used by the Business;
(d) 2.1.6. all interests in leased or subleased real estate listed on Appendix 3.1.1(d)data processing equipment and software programs including, including without limitation, software programs relating to the Real Property Leasesdba Seas the Day Charters USVI;
(e) 2.1.7. all Inventoryfurniture, work in progress furnishings, fixtures and raw materialoffice equipment;
2.1.8. all trade names, trademarks, trade mark applications, service marks, service mark applications, standard drawings, designs, copyrights, patents, patent applications, know how, trade secrets and other intellectual property rights of the Seller used in connection with the Business including, without limiting the generality of the foregoing, the name Seas the Day Charters (f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(fcollectively the “Proprietary Rights);.
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, 2.1.9. all rights and obligations arising after interest in the Closing existing under all Contracts to which name Seas the Company is a party or to which Day Charters and the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or currenttelephone number(s), supplierswebsites, distributors, personnel social media and agents of the Business (including without limitation a list of any and all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part online presence of the Business;
(o) 2.1.10. all licenseslicenses and permits of the Business and all licenses and permits required by government or regulatory authorities, consents, permits and authorisations necessary for to the Company to carry on the Business, including the Key Permitsextent transferable, and all material product rights of the Business against third parties (including software) registrationsall rights in connection with third party guarantees, accreditations warranties and other certifications required for representations); unfilled orders, customer contracts in connection with the Business;
(p) 2.1.11. all insurancebooks, warranty records and condemnation net proceeds received after documentation of the Closing Date with respect to damageBusiness, non-conformance of or loss to the Purchased Assetscustomer lists, sales and sales promotional data and advertising material including, without limitation, templates therefore, credit information, cost and pricing information, supplier lists, product catalogues, and other similar data;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions 2.1.12. the goodwill of sale and other technical material and sales matter which relate to the Business, together with any platesthe exclusive right to the Purchaser to represent itself as carrying on the Business in continuation of and in succession to the Seller, blocksincluding the rights and interest in the name Seas the Day Charters, negatives website and similar material relating to them the telephone number(s) of the Business (without retaining any copies thereofthe “Goodwill”);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) 2.1.13. all other property, assets of any kind and rights, moveable and immoveable, corporeal or nature of the Companyincorporeal, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid owned by the Seller used or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but to which it is entitled in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained connection with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon (i) At the terms Closing (as defined below), Seller shall sell, assign, transfer, convey and subject deliver to the conditions set out in this Agreement, at the Closing, the Company agrees to sell Buyer and the Buyer agrees to shall accept and purchase all assetsof Seller’s right, properties, rights, titles title and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect interest in and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles interests, claims and interests set forth goodwill of Seller, tangible and intangible, of every kind and description, as the same shall exist as of the Closing Date, including, without limitation, the assets, properties and rights of the Seller reflected in Section 3.1.2the Schedule of Purchased Assets attached hereto and labeled Schedule 1.1(a), together with all assets, properties and rights acquired by Seller of a similar nature since the date of such Schedule, less such assets, properties and rights as may have been disposed of since said date in the ordinary course of business; but specifically excluding the Excluded Assets (the “Purchased Assets”):).
(ii) The Purchased Assets include, without limitation, all right, title, and interest in and to all of the assets of the Seller, including all of its (a) the Business tangible personal property (such as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable tangible capital machinery and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business equipment (including without limitation a list all manufacturing and warehousing equipment), computer and communications equipment, inventories, raw materials, work in progress, supplies, furniture, tools, and other mobile equipment), (b) intellectual property (including any franchise, strategic alliance or joint venture), goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, (c) leases (including equipment leases), subleases, and rights thereunder with respect to both real and personal property, (d) accounts, notes, trade and other receivables, (e) purchase orders, agreements, contracts, instruments, purchase commitments for raw materials, goods and other services and rights thereunder to the customers of the Business during the last two years);
extent such items can be transferred, assigned, conveyed and/or delivered, (kf) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, rebates, discounts earned, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, choses in action, rights of recovery, rights of setoff set off, and rights of recoupment of every kind recoupment, (g) franchises, approvals, permits, licenses, orders, registrations, certificates, variances, and nature (including similar rights to insurance proceeds) which relate to the Business, except for any of the foregoing obtained from governments and governmental agencies to the extent they relate to Excluded Assets or Excluded Liabilities;
such items can be transferred, assigned, conveyed and/or delivered, (nh) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licensesbooks, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records)financial statements, copies of ledgers, originals of accounting systems, files, documents, collateral information, databases, plans, specifications, technical information, websites, electronic data and files, correspondence, pricing schedules, catalogs, advertising and promotional materials, studies, reports, customer and contractor lists, studies marketing and reports recruiting processes, employment and training manuals, and other printed or written materials which relate material relating to the BusinessPurchased Assets and all proprietary rights pertaining to such materials, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(ti) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms phone numbers and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered domain names related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to (j) all other tangible and intangible assets of the Business; provided, these assetshowever, rights and properties shall be promptly returned by that the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement Purchased Assets shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect include the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such ContractsExcluded Assets.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Subject to the terms and subject to the conditions set out in of this Agreement, at the closing of the transactions contemplated in this Agreement (the “Closing”), the Company agrees Seller shall sell, convey, assign, transfer and deliver to sell Buyer, and the Buyer agrees shall purchase, free and clear of all Encumbrances (other than Permitted Encumbrances) all right, title and interest in and to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) Seller’s Assets listed below existing as of the Closing Date, and in any case, belonging to or intended to be used in Date other than the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):). The Purchased Assets comprise all of the following Assets of Seller existing on the Closing Date:
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(ci) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the BusinessContracts, including, without limitation each Material Agreement limitation, those listed on Schedule 1.1(a)(i) of the Disclosure Schedule (collectively, the “Assigned Assumed Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(iii) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business inventory (including without limitation a list of all raw materials, supplies, containers, labels, packing and shipping materials, work in process and finished goods) (collectively, the customers of the Business during the last two years“Inventory”);
(kiii) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Dateall Tangible Personal Property;
(liv) a list all Intellectual Property and Intellectual Property Rights of unfulfilled orders Seller including the trademarks and trade names set forth on Schedule 1.1(a)(iv) of the Business as at the Closing DateDisclosure Schedule and all derivatives of each;
(mv) copies of all claimsbooks and records relating to the Purchased Assets, depositsincluding, prepaymentsbut not limited to, Prepaid Expensesbooks of account, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff financial and rights of recoupment of every kind and nature accounting records (including rights all records related to insurance proceeds) which relate accounts receivable, general ledgers, purchasing, billing and payment), material correspondence with Governmental Authorities, sales, marketing, promotional and advertising materials and records, strategic plans, files relating to Seller IP and all other documentation, forms, records (including support records and audit records), procedures, policy documents, manuals, customer materials, system specifications, scripts, logs, databases and other materials of any kind, whether in print or electronic form, but excluding the books and records related exclusively to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or and the Excluded Liabilities;
(nvi) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licensescustomer lists, consentsuser lists, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations goodwill and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased intangible Assets;
(qvii) security deposits, refunds, deposits and prepaid expenses of the Seller and all plansvendor rebate accounts and prospective rebates, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets whether soft dollar or Excluded Liabilities, all computer programs, copies of books hard dollar (other than minute books relating to board meetings, shareholders’ meetings and statutory booksthose constituting Excluded Assets), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(tviii) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilitiesaccounts receivable.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Subject to the terms and subject to the conditions set out in of this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of on the Closing Date, Seller will sell, convey, assign, transfer and in any casedeliver to Purchaser and Purchaser will purchase, belonging to receive and accept delivery from Seller, free and clear of all Liens (other than Permitted Liens), all of Seller’s then existing properties and assets (other than the Excluded Assets) of every kind and nature, real, personal or intended to be used in the Businessmixed, whether tangible, tangible or intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together used in connection with the assets, properties, rights, titles and interests set forth in Section 3.1.2Business (collectively, the “Purchased Assets”):), including, without limitation, all right, title and interest of Seller in, to and under:
2.1.1 All equipment and physical plant, including, without limitation, furniture, furnishings, trade fixtures, leasehold improvements, computers, servers, telephone equipment and all other owned and leased tangible personal property used in the Business as listed on Schedule 2.1.1 attached to this Agreement and incorporated in this Agreement by this reference (the “Fixed Assets”);
2.1.2 All of the assets reflected on the Interim Financial Statement, other than the Excluded Assets and those assets disposed of after the Interim Financial Statement Date in the ordinary course of business consistent with past practice;
2.1.3 All Intellectual Property Rights owned, used by, and (in the case of copies and tangible embodiments of Intellectual Property Rights) in the possession of Seller in connection with the Business as currently conducted that are capable of assignment (the “Owned IP Assets”) and the goodwill associated therewith, including, without limitation, the trade names “Secura” and “Secura Group.”
2.1.4 All of the Contracts, including, without limitation, the Third Person Licenses;
2.1.5 All rights to payment as a consequence of (i) deposits and prepayments listed on Schedule 2.1.5 attached to this Agreement and incorporated in this Agreement by this reference, and (ii) refunds, rights of set off, rights of recovery, rights to payment or proceeds under contracts of insurance to the extent applicable to an Assumed Liability and claims or causes of action relating to the Purchased Assets that arise on or after the Closing (except for refunds of Taxes to the extent provided in Section 10.3); provided, however, that nothing in the foregoing will be construed to prevent Seller from asserting any such rights, claims or causes of action as a defense in any legal proceeding;
2.1.6 Cash in an amount equal to the sum of (a) the Business all client retainer balances that have been paid as a going concern;
of January 31, 2007 but not applied to work performed on or prior to January 31, 2007, as set forth in Schedule 2.1.6 and (b) payments received from clients for services that have not been rendered as of January 31, 2007, as set forth in Schedule 2.1.6, subject to adjustment through the goodwill, if any, relating to the BusinessClosing Date as provided in Section 3.6;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to 2.1.7 All general intangibles used by the Business, including, without limitation each Material Agreement (collectivelylimitation, the “Assigned Contracts”)all corporate goodwill of Seller;
(h) subject to Section 11.6, all rights to the employment 2.1.8 All other assets of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to Seller used by the Business, except for any whether or not reflected on the books or records of the foregoing to the extent they relate to Excluded Assets Seller or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses2.1.9 All creative materials, consents, permits advertising and authorisations necessary for the Company to carry on promotional materials used in connection with the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Businesswherever stored or located;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of 2.1.10 All files, documents, correspondence, studies, reports, books and records of Seller (including all data and other information stored on discs, tapes or other media), client lists, studies client records and reports credit data, computer programs, software, and other printed or written materials which relate to hardware owned and used by Seller in connection with the Business, to the extent such information and documentation exists; provided thatBusiness (collectively, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date“Documents”); and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, 2.1.11 All rights and properties shall forthwith be promptly transferred obligations of Seller under (i) that certain Office Lease dated March 22, 2006 by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the between Seller, as tenant, and Tysons International Plaza I & II, L.P., as landlord, for the case may bepremises located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, thereunder. The Company or the ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ , and (ii) that certain Office Lease Agreement (as amended) dated August 1, 2001 by and between Seller, as the case may betenant, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the SellerL.L.C., as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expenselandlord, for the benefit of premises located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any leases described in clauses (i) and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6(ii) collectively, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts“Leases”).
Appears in 1 contract
Sources: Asset Purchase Agreement (Lecg Corp)
Purchased Assets. 3.1.1 Upon Subject to the terms and subject to the conditions set out in of this Agreement, at on the ClosingClosing Date, the Company agrees Partnership will sell, convey, assign, transfer and deliver to sell Purchaser and Purchaser will purchase, receive and accept delivery from the Buyer agrees to purchase Partnership, free and clear of all assetsLiens (other than Permitted Liens), properties, rights, titles all of the Partnership’s then existing properties and interests assets (other than the Excluded Assets) of every kind and nature, real, personal or nature ownedmixed, leasedtangible or intangible, licensed wherever located, used in connection with the Business (collectively, the “Purchased Assets”), including, without limitation, all right, title and interest of the Partnership in, to and under:
2.1.1 All equipment and physical plant, including, without limitation, furniture, furnishings, trade fixtures, leasehold improvements, computers, servers, telephone equipment and all other owned and leased tangible personal property owned or otherwise held leased under a financing lease by the Company Partnership and used in the Business as listed on Schedule 2.1.1 attached hereto and incorporated herein by this reference (including indirect the “Fixed Assets”);
2.1.2 All of the assets reflected on the Interim Financial Statement, other than the Excluded Assets and other forms those assets disposed of beneficial ownershipafter the Interim Financial Statement Date in the ordinary course of business consistent with past practice;
2.1.3 All Intellectual Property Rights owned and used by the Partnership in connection with the Business as currently conducted that are capable of assignment (“IP Assets”) and the goodwill associated therewith, including, without limitation, the trade name “▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.”
2.1.4 All of the Contracts, including, without limitation, the Third Person Licenses;
2.1.5 All rights to payment as a consequence of (i) deposits and prepayments, including, without limitation, the deposits under the Salt Lake City Lease, the Wilmington Lease and the Los Angeles Sublease, listed on Schedule 2.1.5 attached hereto and incorporated herein by this reference, and (ii) refunds, rights of set off, rights of recovery, rights to payment or proceeds under contracts of insurance to the extent applicable to an Assumed Liability, and claims or causes of action relating to the Purchased Assets that arise on or after the Closing (except for refunds of Taxes to the extent provided in Section 11.3); provided, however, that nothing in the foregoing will be construed to prevent the Partnership from asserting any such rights, claims or causes of action as a defense in any legal proceeding;
2.1.6 Cash in an amount equal to the sum of (a) all client retainer balances that have been paid but not applied as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
Schedule 2.1.6 and (b) payments received from clients for services that have not been rendered as of the goodwillClosing Date, if any, relating to the Businessas set forth in Schedule 2.1.6;
(c) all Accounts Receivable, notes receivable 2.1.7 All general intangibles owned by the Partnership and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to used by the Business, including, without limitation each Material Agreement (collectivelylimitation, all goodwill of the “Assigned Contracts”)Partnership;
(h) subject to Section 11.6, all rights to the employment 2.1.8 All other assets of the Employees, including those individuals set forth Partnership used in Appendix 3.1.1(h) attached hereto;
(i) all records the conduct of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any whether or not reflected on the books or records of the foregoing to the extent they relate to Excluded Assets Partnership or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses2.1.9 All creative materials, consents, permits advertising and authorisations necessary for the Company to carry on promotional materials used in connection with the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Businesswherever stored or located;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of 2.1.10 All files, documents, correspondence, listsstudies, studies reports, books and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Partnership (including all data and other information stored on discs, tapes or other media), client lists, client records and credit data, computer programs, software, and hardware owned and used by the Partnership in connection with the Business covering (collectively, the three (3) financial years preceding the Accounts Date“Documents”); and
(t) all other assets of any kind or nature 2.1.11 All rights and obligations of the Partnership under (i) that certain Lease dated the month of August, 2000, by and between the Partnership, as tenant, and Phoenix Home Life Mutual Insurance Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expenselandlord, for the benefit premises at ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (the “Salt Lake City Lease”); (ii) that certain oral sublease agreement having a commencement date of October 15, 2000 by and between the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligationsPartnership, as applicablesub-tenant, any and all rights of the Company or the SellerPachulski, Stang, Ziehl, Young, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ PC., as applicablesub-landlord, against a third party thereto. With for premises in the exception of employment Contracts with Employees which are subject to Section 11.6building located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Los Angeles, California 90067 (the Company or “Los Angeles Sublease”); and (iii) that certain Lease dated April 16, 2001, by and among the SellerPartnership and Crossroads, LLC, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contractco-tenants, and Wilmington Center LLC, as landlord, for the Buyer shall paypremises at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, defend▇▇▇▇▇ ▇▇▇, discharge ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Wilmington Lease”). The Salt Lake City Lease, Los Angeles Sublease and perform all Liabilities under such Contractsthe Wilmington Lease are collectively referred to as the “Office Leases.”
Appears in 1 contract
Sources: Asset Purchase Agreement (Lecg Corp)
Purchased Assets. 3.1.1 Upon Seller agrees to and does hereby sell, transfer, assign, convey and deliver to Purchaser, and Purchaser hereby agrees to and does hereby purchase and acquire from Seller, free and clear of all liens, encumbrances, claims, restrictions, security interests, obligations and liabilities except as otherwise expressly provided herein, all of the terms assets that are owned by Seller and subject that are used or useful by Seller in the operation of the Business at the Effective Time except the Excluded Assets (as hereinafter defined), including in the assets being purchased and sold hereunder, without limiting the generality of the foregoing, the following assets as the same shall exist at the Effective Time (which assets being acquired are hereinafter collectively called the "Purchased Assets"):
1.1.1. all furniture, furnishings, fixtures, leasehold improvements, equipment and other fixed assets, including, without limitation, the assets listed on Schedule 1.1.1;
1.1.2. all of Seller's rights, title, and interest in and to all software owned by Seller or licensed to Seller by third parties, including all documentation, source codes, software modules and enhancements and software in development;
1.1.3. all inventories including marketing materials (including video tapes, brochures, and the like), spare parts and supplies;
1.1.4. all of Seller's rights under all leases, contracts (including software license agreements and maintenance agreements), agreements, and sales orders, including but not limited to those leases, contracts, agreements, and sales orders listed on Schedule 1.1.4 (the "Purchased Contracts");
1.1.5. all prepaid and deferred items including prepaid rentals and deposits;
1.1.6. all operating and financial data and information and books and records relating to the conditions set out in this Agreement, at Purchased Assets or the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests business or operations of every kind or nature owned, leased, licensed or otherwise held by the Company Seller (including indirect and other forms of beneficial ownership) as of the Closing Date, wherever located and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal every format and wherever locatedmedia whatsoever), including without limitation software databases, written records, personnel files (but only as to personnel hired by Purchaser and only with their knowledge), files, policies, customer lists, mailing lists, supplier lists, credit information, correspondence, designs, slogans, processes, know-how, trade secrets, and other similar property;
1.1.7. all intellectual property rights of the following assetsSeller, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, including Seller's rights, titles title and interests set forth interest in Section 3.1.2and to all United States and foreign patents (including all reissues, the “Purchased Assets”):
(a) the Business as a going concerndivisions, continuations and extensions thereof), patent applications, patent disclosures docketed, copyrights, trademarks, trademark rights, trademark applications, trade names, service marks, service mark rights, service mark applications and li▇▇▇▇es;
(b) the goodwill1.1.8. all registrations, if anypermits, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits approvals and authorisations necessary for qualifications of Federal, State, local or other government agencies relating to the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance business or operations of Seller or loss to the Purchased Assets;
(q) 1.1.9. all plans, instructional rights to warranties and promotional material, sales publications, advertising materials, terms and conditions of sale and guarantees or other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material claims relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assetsincluding without limitation rights under agreements for the supply of equipment or leasehold improvements;
1.1.10. all rights to the use of Seller's name and derivatives thereof, rights all past corporate names of Seller and properties shall forthwith be promptly transferred all assumed business names or other names used or previously used by the Seller or its predecessors in its business; and
1.1.11. the Company, as the case may be, goodwill relating to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights 's customers and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parentbusiness.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Personnel Management Inc)
Purchased Assets. 3.1.1 Upon The Purchased Assets include, without limitation, the terms following:
(a) all of the billboard displays, benches and subject other out-of-home advertising structures, together with all components, fixtures, parts, appurtenances, and equipment attached to or made a part thereof that are existing, under construction or for which Seller has any rights (collectively, the "Structures"), including, without limitation, all of the Structures listed on Schedule 2.2(a);
(b) all state and local licenses or permits/tags which Seller has with respect to the conditions set out in this Agreement, at Business and all other Governmental Authorizations that are required for the Closingoperation of the Business (collectively, the Company agrees to sell "Permits"), including, without limitation, all of the Permits listed on Schedule 2.2(a);
(c) all of the real property owned in fee by Seller and any rights therein, including, without limitation, all of the Buyer agrees to purchase real property listed on Schedule 2.2(c), and all assetsbuildings, propertiesfacilities, rightsstructures, titles and interests of every kind or nature ownedfixtures, leased, licensed or otherwise held by the Company (including indirect leasehold and other forms improvements located therein, and all rights under the J.G.A. Lease (collectively, the "Owned Real Property");
(d) all leases, licenses, easements, other rights of beneficial ownershipingress or egress, and all other grants of the right to place, construct, own, operate or maintain the Structures on land, buildings and other real property owned by third parties, and all rights therein (collectively, the "Site Leases"), including, without limitation, all of the Site Leases listed on Schedule 2.2(d);
(e) all Books and Records;
(f) all tangible personal property, including furniture, vehicles, machinery, equipment, computer hardware and software, owned by Seller and used in the operation of the Business (collectively, the "Tangible Personal Property"), including, without limitation, all of the Tangible Personal Property listed on Schedule 2.2(f);
(g) accounts receivable, prepaid items and expenses and other assets of Seller used in the Business that would be reflected as current assets on a balance sheet of Seller as of the Closing Date prepared in a manner consistent with Section 3.10(a), but excluding cash and cash equivalents;
(h) all of the rights under existing and pending sales and advertising contracts associated with the Business, all rights to the advertising copy displayed on the Structures as of the Closing Date, all other rights to collect and in any case, belonging to or intended to be used in receive income from the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all use of the following assets, but excluding all Excluded Assets Structures and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwillsecurity deposits, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
thereto (dcollectively, the "Advertising Contracts") including, without limitation, all interests in leased or subleased real estate of the Advertising Contracts listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(fSchedule 2.2(h);
(gi) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to additional supplies used in connection with the Business, including, without limitation each Material Agreement (collectivelylimitation, the “Assigned Contracts”);
(h) subject to Section 11.6panels, all rights to the employment of the Employeesmoldings, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes steel components, sections, parts, paint and employer’s fees relating to all the Employees duly completed painting supplies, appurtenances, equipment, electrical connections, wiring and up to date, covering the three (3) financial years preceding the Accounts Datelighting components;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years)Intangible Property;
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing DateOther Contracts;
(l) a list of unfulfilled orders of the Business as at the Closing DateCurrent Proceedings;
(m) the Non-Solicitation Agreements; and
(n) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refundsrights (including any benefits arising therefrom), causes of action, rights claims and demands of recovery, rights of setoff and rights of recoupment of every kind and whatever nature (including rights to insurance proceedswhether or not liquidated) which relate of Seller relating to the BusinessPurchased Assets described in subparagraphs 2.2(a)-(m) above, except for including, without limitation, condemnation rights and proceeds accruing after the Closing, and all rights against suppliers under warranties covering any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilitiessame.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tri State Outdoor Media Group Inc)
Purchased Assets. 3.1.1 Upon The Purchased Assets are those assets of Seller used in the terms Business listed below:
(a) all of the billboard displays and subject other out-of-home advertising structures, together with all components, fixtures, parts, appurtenances, and equipment attached to or made a part thereof that are existing, under construction or for which Seller has any rights (including at least 106 structures and 246 sign faces) (collectively, the "Structures"), including, without limitation, all of the Structures listed on Schedule 2.2(a);
(b) all leases, licenses, easements, other rights of ingress or egress, and all other grants of the right to place, construct, own, operate or maintain billboard displays and other out-of-home advertising structures (including, without limitation, the Structures) on land, buildings and other real property owned by third parties, and all rights therein (collectively, the "Site Leases"), including, without limitation, those Site Leases listed on Schedule 2.2(b);
(c) all of the rights under existing and pending sales and advertising contracts associated with the Business, all rights to the conditions set out in this Agreement, at advertising copy displayed on the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) Structures as of the Closing Date, all other rights to collect and in any case, belonging to or intended to be used in receive income from the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all use of the following assets, but excluding all Excluded Assets Structures and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwillsecurity deposits, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretothereto (collectively, the "Advertising Contracts"), including, without limitation, all of the Advertising Contracts listed on Schedule 2.2(c);
(d) all interests state and local licenses or permits/tags which Seller has or has an interest in leased or subleased real estate with respect to the Business and all other Governmental Authorizations that are required for the operation of the Business (collectively, the "Permits"), including, without limitation, all of the Permits listed on Appendix 3.1.1(dSchedule 2.2(d), including the Real Property Leases;
(e) all Inventoryaccounts receivable, work prepaid items and other assets of Seller as of the Closing Date used in progress the Business that would be reflected as current assets on a balance sheet of Seller as of the Closing Date prepared in a manner consistent with Section 3.10(a), but excluding cash and raw materialcash equivalents;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f)pertinent Books and Records;
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);Intangible Property; and
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two yearsany benefits arising therefrom);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights claims and demands of recovery, rights of setoff and rights of recoupment of every kind and whatever nature (including rights to insurance proceedswhether or not liquidated) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss Seller relating to the Purchased Assets;
(q) , including, without limitation, condemnation rights and proceeds, and all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with rights against suppliers under warranties covering any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tri State Outdoor Media Group Inc)
Purchased Assets. 3.1.1 Upon Subject to the terms and subject conditions hereof, the Seller agrees to sell, assign, convey and transfer to the conditions set out in this Agreement, at Purchaser on the ClosingClosing Date and with effect therefrom as a going concern, the Company agrees to sell undertaking and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets property and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 assets of the Sellers dba Seas the Day Charters USVI (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):), moveable and immoveable, of every kind and description and wheresoever situate, other than the Excluded Assets, said Purchased Assets including, without limiting the generality of the foregoing:
(a) the Business 2.1.1. all maritime vessels as a going concernlisted in Addendum A hereto;
(b) 2.1.2. all accounts receivable, trade accounts receivable, notes receivable, book debts and other debts due or accruing due to the goodwillSeller;
2.1.3. all machinery, if anyequipment, relating molds, dies, tools, small tools and parts including, without limitation:
2.1.3.1. maintenance items, in store materials, handling equipment, accessories and supplies;
2.1.3.2. all product inventory for use or resale;
2.1.3.3. all machinery, equipment, molds, dyes and tools in the possession of sub- contractors or other third parties;
2.1.3.4. machinery and equipment which may fall into the category of immoveables by destination including, without limitation, docks, compressors, generators, electrical control panels, heaters and ventilators.
2.1.4. all immovables including, without limitation, all land, buildings, plants, leaseholds, improvements and fixtures owned by the Seller, including immoveables for which the Seller has an option to purchase for the Business;
(c) 2.1.5. all Accounts Receivable, notes receivable cars and other amounts receivable from third parties, including customers and employees, and vehicles of all correspondence with respect theretokinds of the Seller used by the Business;
(d) 2.1.6. all interests in leased or subleased real estate listed on Appendix 3.1.1(d)data processing equipment and software programs including, including without limitation, software programs relating to the Real Property Leasesdba Seas the Day Charters USVI;
(e) 2.1.7. all Inventoryfurniture, work in progress furnishings, fixtures and raw materialoffice equipment;
2.1.8. all trade names, trademarks, trade mark applications, service marks, service mark applications, standard drawings, designs, copyrights, patents, patent applications, know how, trade secrets and other intellectual property rights of the Seller used in connection with the Business including, without limiting the generality of the foregoing, the name Seas the Day Charters (f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(fcollectively the “Proprietary Rights);.
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, 2.1.9. all rights and obligations arising after interest in the Closing existing under all Contracts to which name Seas the Company is a party or to which Day Charters and the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or currenttelephone number(s), supplierswebsites, distributors, personnel social media and agents of the Business (including without limitation a list of any and all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part online presence of the Business;
(o) 2.1.10. all licenseslicenses and permits of the Business and all licenses and permits required by government or regulatory authorities, consents, permits and authorisations necessary for to the Company to carry on the Business, including the Key Permitsextent transferable, and all material product rights of the Business against third parties (including software) registrationsall rights in connection with third party guarantees, accreditations warranties and other certifications required for representations); unfilled orders, customer contracts in connection with the Business;
(p) 2.1.11. all insurancebooks, warranty records and condemnation net proceeds received after documentation of the Closing Date with respect to damageBusiness, non-conformance of or loss to the Purchased Assetscustomer lists, sales and sales promotional data and advertising material including, without limitation, templates therefore, credit information, cost and pricing information, supplier lists, product catalogues, and other similar data;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions 2.1.12. the goodwill of sale and other technical material and sales matter which relate to the Business, together with any platesthe exclusive right to the Purchaser to represent itself as carrying on the Business in continuation of and in succession to the Seller, blocksincluding the rights and interest in the name Seas the Day Charters, negatives website and similar material relating to them the telephone number(s) of the Business (without retaining any copies thereofthe “Goodwill”);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) 2.1.13. all other property, assets of any kind and rights, moveable and immoveable, corporeal or nature of the Companyincorporeal, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid owned by the Seller used or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but to which it is entitled in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained connection with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon The Company agrees to and will sell, convey, transfer, assign and deliver to Medical Manager (or its designee) at the Closing (as defined in Section 1.9), on the terms and subject to the conditions set out forth in this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all of its assets, properties, rights, titles properties and interests business of every kind and description, whether real, personal or nature ownedmixed, leasedtangible or intangible, licensed or otherwise held by wherever located (except those assets of the Company (including indirect and other forms of beneficial ownershipwhich are specifically excluded as provided in Section 1.2 hereof) as shall exist on the Closing Date (as defined in Section 1.9), whether or not appearing on the Current Balance Sheet (as defined in Section 3.9) (collectively, the "Purchased Assets"). Without limiting the generality of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2foregoing, the “Purchased Assets”):Assets shall include the following:
(a) all tangible personal property, including, without limitation, all machinery, equipment, tools, supplies, leasehold improvements, construction in progress, furniture and fixtures located at or on the Business Leased Premises (as a going concerndefined in Section 3.14(b)) and all vehicles;
(b) all inventories of the goodwill, if any, relating to the BusinessCompany;
(c) all Accounts Receivablework in process and receivables of the Company, including without limitation, all trade accounts receivable, notes receivable and receivables from manufacturers, insurance companies, service contract providers and any other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretovendors or suppliers of the Company;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d)of the interest of and the rights and benefits accruing to the Company as lessee under the leases covering the Leased Premises and any leases covering machinery, including the Real Property Leasesequipment, tools, furniture and fixtures and other tangible assets;
(e) all Inventoryof the interests, work rights and benefits accruing to the Company under any franchise contracts, sales orders, sales contracts, supply contracts, service agreements, purchase orders and purchase commitments made by the Company in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6the ordinary course of business, all rights and obligations arising after the Closing existing under all Contracts other agreements to which the Company is a party or to by which it is bound and all choses in action, causes of action and other rights of every kind of the Seller is a party if any such Contract relates to Company;
(f) all operating data and records of the BusinessCompany, includingincluding without limitation, customer lists and records, financial, accounting and credit records, computer data, correspondence, budgets and other similar documents and records;
(g) all cash and cash equivalents and investments, whether short-term or long-term, of the Company, including without limitation each Material Agreement (collectivelylimitation, the “Assigned Contracts”)bank accounts, certificates of deposit, treasury bills and securities;
(h) subject to Section 11.6, all rights to the employment prepaid and deferred items of the EmployeesCompany, including those individuals set forth in Appendix 3.1.1(h) attached heretowithout limitation, prepaid rent, insurance and taxes;
(i) all records of Taxes insurance proceeds (and employer’s fees relating claims therefore) arising in connection with damage or other casualty with respect to all the Employees duly completed and up Purchased Assets. Upon request by the Company, Medical Manager shall allow the Company reasonable access to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists books and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, (i) prepare and all material product (including software) registrations, accreditations and other certifications required file its tax returns for the Business;
(p) all insurance, warranty and condemnation net proceeds received after periods prior to the Closing Date or otherwise comply with the requirements of any other Governmental Authority and (ii) defend any litigation or administrative proceeding (other than with respect to damageany litigation or administrative proceeding to which Medical Manager or its Affiliates are adverse parties or the result of which could have a Material Adverse Effect upon Medical Manager or its Affiliates). No patents, nonpatent applications, inventions, know-conformance of how, proprietary formulas, designs or loss processes, computer software, or similar intellectual property are being conveyed by the Company to the Purchased Assets;
(q) all plansMedical Manager; provided, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided thathowever, the Company shall retain the originals in cases where the Buyer obtains copies hereby grants to Medical Manager, its Affiliates, successors and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
assigns at no additional charge a non-exclusive perpetual license to use all program modules (s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may beincluding, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstandinglimitation, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party all source code and object code relating thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received created by the Company or using the Seller under any such ContractData Merge programming language as enhancements to a Medical Manager software product, and Medical Manager shall have the Buyer shall pay, defend, discharge unrestricted right to make enhancements and perform all Liabilities under to otherwise modify such ContractsDataMerge programming language.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out in of this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) effective as of the Closing Date, Sellers shall sell, transfer, assign, convey and deliver to Buyer, and Buyer shall purchase from Sellers, free and clear of all Encumbrances, all right, title and interest of Sellers in, to and under the assets described in any case, belonging this Section 2.1 (herein referred to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) all tangible personal property of Sellers, including without limitation all machinery, equipment (including, without limitation, telecommunications equipment, computer equipment, routers, switches, concentrators, peripherals and related hardware) (“Equipment”), furniture, fixtures, leasehold improvements and all other fixed or tangible assets owned or leased under assumed Contracts, including, without limitation, those items described on Schedule 2.1(a) (collectively, the Business as a going concern“Personal Property”), except those items to be retained by Sellers pursuant to Section 2.2 hereto;
(b) all real property leases and subleases as set forth in Schedule 2.1(b), plus such other leases as the goodwillparties may agree to add after the Effective Date, if anybut prior to Closing (the “Real Property Leases”);
(c) all of Sellers’ rights in or under (i) all contracts with customers, all Carrier Contracts, and all software licenses, including without limitation those listed on Schedule 2.1(c)(i) and (ii) all contracts with carriers (other than Carrier Contracts), vendors, software developers and others and the equipment leases listed on Schedule 2.1(c)(ii), plus such other contracts as the parties may agree to add after the Effective Date, but prior to Closing (collectively, the “Contracts”) and all claims and causes of action thereunder;
(d) all of Sellers’ rights in and to security and vendor deposits, prepayments and refunds existing with respect to the assumed and assigned Real Property Leases and Contracts, including, without limitation, those listed on Schedule 2.1(d), excluding any deposits addressed in the Section 366 Orders or held in the form of letters of credit;
(e) all of Sellers’ intellectual property and intangible property, including without limitation all of Sellers’ (1) trademarks, service marks, brand names, certification marks, collective marks, d/b/a’s, domain names, logos, symbols, trade dress, product configurations, assumed names, fictitious names, internet protocol addresses, trade names, indicia of origin, all applications and registrations for all of the foregoing, together with all goodwill associated with any of the foregoing and symbolized thereby, including all extensions, modifications and renewals of same; (2) inventions, discoveries and ideas, whether patentable or not, and all patents, registrations and applications therefore, including divisions, continuations, continuations-in-part and renewal applications, and including renewals, extensions and reissues; (3) confidential and proprietary information, trade secrets and know-how relating to the Business, including processes, schematics, databases, customer and other resource lists, formulae, drawings, prototypes, models, designs, and any confidential, secret or proprietary aspects of the Business, including, without limitation, marketing information, pricing arrangements with customers and suppliers or financial information relating to the Business; (4) computer software required to operate the “Lattis System” utilized by Sellers and all other proprietary computer software of Sellers, including, without limitation, all computer programs, object code, source code, user interface, databases and documentation; (5) rights in works of authorship, including databases and other compilations of information; and (6) other intellectual property or proprietary rights owned by Sellers including without limitation those utilized in, developed in connection with or material to the Business, including without limitation any of the foregoing listed on Schedule 2.1(e) (collectively, the “Intellectual Property”);
(f) all accounts receivable of the Business relating to services or products to be supplied on or after the Closing Date, including all accounts receivable that have been billed by Sellers in advance for services or products that have not yet been provided prior to the Closing Date, together with any and all proceeds of any of the foregoing (collectively, the “Accounts Receivable”);
(g) all of Sellers’ books of account, records, files (including those relating to customers and carriers), customer lists, invoices and similar financial books, records and information, employment records and files, and Sellers’ engineering and other technical books, papers, files and records (including all data and other information stored on discs, tapes, including back up tapes, or other media) relating to the Business;
(ch) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, rights to enforce any and all correspondence with respect theretoagreements between Sellers and their respective employees relating to noncompetition, invention assignment, proprietary information and/or confidentiality; except that Seller shall retain any cause of action against any employee for damages to the extent of loss or damage suffered by Debtors or their estates on account of employee conduct occurring prior to the Closing Date;
(di) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all other rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates of Sellers relating to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6limitation, all rights goodwill relating to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts DateBusiness;
(j) all lists transferable permits and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years)licenses;
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Dateall transferable phone, fax numbers, carrier identification codes;
(l) a list of unfulfilled orders of the Business as at the Closing Dateall websites;
(m) all claims, deposits, prepayments, Prepaid Expenses, rights under warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;; and
(n) all Intellectual Property Rights owned proceeds of insurance arising from damage to, destruction of or otherwise held by loss relating to the Company as part of the Business;
(o) all licensesPurchased Assets or covering claims, consentsif any, permits and authorisations necessary for the Company to carry on the Businesswhich Buyer may have successor liability, including the Key Permitsprovided, and all material product (including software) registrationshowever, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damageany successor liability claims, non-conformance of such proceeds shall be used solely either to satisfy such liability directly or, if Buyer or loss Debtors have already satisfied such a claim, to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except reimburse Buyer or Debtor to the extent they relate to of such satisfaction. It is the intention of the parties that all assets of Sellers other than Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating are to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and be included in the definition sale hereunder. Accordingly, if any asset of Purchased Assets.
3.1.3 The Purchased Assets shall Sellers, which is not an Excluded Asset, is not transferred to Buyer at Closing, Sellers shall, at Buyer’s request, cause it to be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 Iffor no additional consideration, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this AgreementBankruptcy Court approval, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, and assigning any executory contracts and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contractsunexpired leases.
Appears in 1 contract
Sources: Asset Purchase Agreement (Universal Access Global Holdings Inc)
Purchased Assets. 3.1.1 Upon On the terms and subject to the conditions set out contained in this Agreement, at on the ClosingClosing Date (as hereinafter defined), the Company agrees Purchaser shall purchase from Seller, and Seller shall sell, convey, assign, transfer and deliver to sell Purchaser, free and the Buyer agrees to purchase clear of all assetsLiens, propertiesby appropriate warranty bills of sale, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect assignments and other forms instruments satisfactory to Purchaser and its counsel, substantially all of beneficial ownership) as of the Closing Date, Seller’s tangible and in any case, belonging to or intended to be intangible assets currently used in the operation of the TRS Business, whether tangibleincluding, intangiblewithout limitation, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):) but specifically excluding the Excluded Assets:
(a) 1.1.1. all of the Business as a going concernSeller Intellectual Property;
(b) 1.1.2. all income, royalties, damages and payments due at Closing or thereafter with respect to the goodwillSeller Intellectual Property and all other rights thereunder including, if anywithout limitation, damages and payments for past, present or future infringements or misappropriations thereof, the right to ▇▇▇ and recover for past, present or future infringements or misappropriations thereof; all rights to use all of the foregoing forever and all other rights in, to, and under the foregoing in all countries;
1.1.3. all inventories, work in process and supplies relating to the TRS Business;
(c) 1.1.4. all Accounts Receivable, notes accounts receivable and other amounts receivable from third partiesrelating to the TRS Business, including customers those listed on Schedule 1.1.4.;
1.1.5. all equipment relating to the TRS Business, including those listed in Schedule 1.1.5;
1.1.6. all claims, causes of action, choses in action, rights of recovery and employeesrights under all warranties, representations and guarantees made by suppliers of products, materials or equipment, or components thereof, arising from or relating to the Purchased Assets or the Assumed Liabilities;
1.1.7. all security deposits, ▇▇▇▇▇▇▇ deposits and all correspondence other forms of deposit or security placed with respect thereto;
or by Seller relating to the TRS Business (d) all interests in specifically excluding security deposits for leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(fproperty);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, 1.1.8. all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates Governmental Authorizations relating to the TRS Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) 1.1.9. all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrationsother books, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondencestudies or reports, lists, studies and reports and other printed or written materials which relate business records relating to the Business, to TRS Business (the extent such information “TRS Books and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirementsRecords”);
(s) the value added Tax records of 1.1.10. all rights under the Business covering the three (3) financial years preceding the Accounts DateContracts; and
(t) 1.1.11. all other assets of any kind or nature goodwill of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded LiabilitiesTRS Business.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon For good and valuable consideration, the terms receipt and subject sufficiency of which are hereby acknowledged, Sellers hereby sell, convey, assign, transfer and deliver to Buyer, and Buyer hereby purchases, acquires and accepts from Sellers, all of the Purchased Assets other than the Assumed Contracts. The Purchased Assets assigned hereby shall include, without limitation, the assets of Sellers described below:
a. All of the items of Inventory set forth on Schedule 2.1(a)(i) hereto;
b. All of Sellers' Fixed Assets, including without limitation, the items listed in Schedule 2.1(a)(iii) hereto;
c. All of Sellers' Licenses and Permits related to the conditions set out in this Agreement, at the Closing, the Company agrees to sell Business and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownershipPurchased Assets set forth in Schedule 2.1(a)(iv) as of the Closing Date, and in any case, belonging to or intended to be used in hereto;
d. Customer databases for the Business, whether tangibleincluding the associated database computer software;
e. Originals or true copies of all of Sellers' Books & Records for the period December 31, intangible, real or personal and wherever located1993 to present, including without limitation all of general, financial and accounting records, purchase orders and invoices, sales orders and sales order log books, personnel records, correspondence and miscellaneous records with respect to customers and supply sources, and all other general correspondence, records, books and files now owned or hereafter acquired by Sellers with respect to the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concernBusiness;
(b) the goodwillf. All of Sellers' customer and supplier lists, if anycontacts and files, catalogues, brochures, pricing and other marketing information and materials, production supplies, form marketing literature and videos, and all similar data and materials of all kinds relating to the Business;
(c) all Accounts Receivableg. All of Sellers' right, notes receivable title and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests interest in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work those vehicles used in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(hand reflected on Schedule 2.1(a)(x) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given hereto as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights being owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts DateSellers; and
(t) all h. The goodwill and other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not intangibles related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Aero Services International Inc)
Purchased Assets. 3.1.1 Upon The Purchased Assets are those assets of Seller used in the terms Business listed below:
(a) all of the billboard displays and subject other out-of-home advertising structures, together with all components, fixtures, parts, appurtenances, and equipment attached to or made a part thereof that are existing, under construction or for which Seller has any rights (including at least 1,900 structures and 2,400 sign faces) (collectively, the "Structures"), including, without limitation, all of the Structures listed on Schedule 2.2(a);
(b) all leases, licenses, easements, other rights of ingress or egress, and all other grants of the right to place, construct, own, operate or maintain billboard displays and other out-of-home advertising structures (including, without limitation, the Structures) on land, buildings and 2 other real property owned by third parties, and all rights therein (collectively, the "Site Leases"), including, without limitation, those Site Leases listed on Schedule 2.2(b):
(c) all of the rights under existing and pending sales and advertising contracts associated with the Business, all rights to the conditions set out in this Agreement, at advertising copy displayed on the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) Structures as of the Closing Date, all other rights to collect and in any case, belonging to or intended to be used in receive income from the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all use of the following assets, but excluding all Excluded Assets Structures and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwillsecurity deposits, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretothereto (collectively, the "Advertising Contracts"), including, without limitation, all of the Advertising Contracts listed on Schedule 2.2(c);
(d) all interests state and local licenses or permits/tags which Seller has or has an interest in leased or subleased real estate with respect to the Business and all other Governmental Authorizations that are required for the operation of the Business (collectively, the "Permits"), including, without limitation, all of the Permits listed on Appendix 3.1.1(dSchedule 2.2(d), including the Real Property Leases;
(e) all Inventoryaccounts receivable, work prepaid items and other assets of Seller as of the Closing Date used in progress and raw materialthe Business that would be reflected as current assets on a balance sheet of Seller as of the Closing Date prepared in a manner consistent with Section 3. 10(a) (but excluding cash);
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f)the Books and Records;
(g) except for the Intangible Property;
(h) all real property owned in fee by Seller (or, in the case of the real property commonly known as 4000 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ [▇▇e "Omaha Property"], owned by L.K. Company, L.L.C., a Nebraska limited liability company [the "LLC"]) and used in the Business and any Excluded Assets or Excluded Liabilities rights therein, and subject all buildings, fixtures, structures and other improvements located thereon, listed on Schedule 2.2(h) (the "Real Property") (but excluding the real property commonly referred to Sections 3.1.5as the Century 21 Apartments located at 10025 "S" Plaza, 3.6 Omaha, Nebraska);
(i) all tangible personal property owned by Seller and 11.6, all rights and obligations arising after used in the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to operation of the Business, including, without limitation each Material Agreement limitation, the property listed on Schedule 2.2(i) (collectively, the “Assigned Contracts”"Tangible Personal Property");
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists supplies used in connection with the Business, including, without limitation, panels, moldings, steel components, sections, parts, paint supplies, and records pertaining to customer accounts (whether past or currentappurtenances, equipment, electrical connections, wiring and lighting components, as set forth on Schedule 2.2(j), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);; and
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
all rights (l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refundsincluding any benefits arising therefrom), causes of action, rights claims and demands of recovery, rights of setoff and rights of recoupment of every kind and whatever nature (including rights to insurance proceedswhether or not liquidated) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss Seller relating to the Purchased Assets;
(q) , including, without limitation, condemnation rights and proceeds, and all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with rights against suppliers under warranties covering any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tri State Outdoor Media Group Inc)
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Datehereby purchases, and in any caseSeller hereby sells, belonging conveys, assigns, transfers and delivers to or intended to be used in the BusinessBuyer, whether tangiblefree and clear of all indebtedness and Encumbrances (as defined below), intangible, real or personal and wherever located, including without limitation all of the rights of Seller in and to the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):
(a) all software, source code, object code, stored data, computer equipment, communication equipment, peripherals and other accessories, telephone numbers, technical information, any other technology, and all documentation related to any of the Business as a going concernforegoing, used in connection with the Business, including, but not limited to, the items listed on Exhibit A (the “Technology”);
(b) all patents, trademarks, service marks, logos, trade or brand names, fictitious business names, copyrights, any applications for any of the goodwillforegoing, if anyany license rights with respect to any of the foregoing, relating and all other intellectual property rights, which relate to or are otherwise used in connection with the Business;, including, but not limited to, the items listed on Exhibit A (the “Intellectual Property Rights”). For purposes of this agreement, the parties have agreed to allocate the fair market value of $4,922,000 to these assets.
(c) all Accounts Receivabletrade secrets, notes receivable know-how (including, without limitation, proprietary know-how and use and application know-how) engineering and other amounts receivable from third partiesdrawings, including customers secret processes and employeesprocedures, marketing, promotional and sales materials, business records, subscriber lists, supplier lists, sales and marketing data, marketing reports, mailing lists, and all correspondence other materials and data, related to, or used in connection with respect theretothe Business;
(d) all interests leads, prospects and business Opportunities related to the Business and the Purchased Assets and the benefits under all agreements with vendors, customers and other third parties, used in leased or subleased real estate listed on Appendix 3.1.1(d), including connection with the Real Property LeasesBusiness Exhibit D;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all assignable claims, deposits, prepayments, Prepaid Expenses, product warranties, product guarantees, refunds, causes of action, rights of recovery, rights of setoff set-off and rights of recoupment recoupment, indemnification and similar rights against the manufacturers and suppliers of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets Purchased Assets, or Excluded Liabilitiesagainst any other party, of any kind or nature;
(nf) all Intellectual Property Rights owned or otherwise held by the Company as part of transferable licenses required to conduct the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(tg) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not goodwill related to the Business, these assetsand any other assets of any nature, rights and properties shall be promptly returned by tangible or intangible, used in connection with the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights operation of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such ContractsBusiness.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon On the terms and subject to the conditions set out forth in this Agreement, at Buyer shall purchase from Seller, and Seller shall sell, convey, assign, transfer and deliver (or cause to be sold, conveyed, assigned, transferred and delivered) to Buyer on the ClosingClosing Date, the Company agrees to sell all of Seller’s right, title and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) interest as of the Closing DateDate in all of Seller’s properties, assets and in rights of any case, belonging to or intended to be used in the Businesskind, whether tangible, tangible or intangible, real or personal and wherever located, including without limitation all of (except for the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 Assets) (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):), including the following:
(ai) the Business as a going concern;
(b) the goodwillall agreements, if anycontracts, licenses, instruments, leases, subleases and other arrangements relating to the Business, to which Seller is subject, bound or affected and all rights thereunder described on Schedule 2.1(a)(i) (the “Assumed Contracts”) but specifically excluding the Retained Contracts;
(cii) all Accounts Receivablemachinery and equipment (including all vehicles, notes receivable cleaning equipment and other amounts receivable from third partiesoffice equipment), spare parts, supplies, fixtures, trade fixtures, furniture, computers and related software, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate of the personal property listed on Appendix 3.1.1(d), including the Real Property Leases;
(eSchedule 2.1(a)(ii) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is having a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement net book value of at least $5,000 (collectively, the “Assigned ContractsEquipment”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(iiii) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three inventory (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years“Inventory”);
(kiv) a list of potential customers of all accounts, notes and other receivables, excluding any amounts due from Parent (collectively, the Business to which outstanding quotations have been given as at the Closing Date“Accounts Receivable”);
(lv) a list of unfulfilled orders of the Business as at the Closing Dateall prepayments and prepaid expenses and cash deposits (including security and customer deposits and prepayments);
(mvi) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff recovery and rights of set-off or recoupment of any kind;
(vii) all lists, books, records, documents, correspondence, and other information of any kind (including those pertaining to accounts, Transferred Employees, customers, suppliers, referral sources and other business relations) and all studies, plans, books, ledgers, files and business records of every kind and nature (including rights to insurance proceedsall financial, business and marketing plans and information), in each case whether evidenced in writing, electronic data (including by computer) which relate to the Businessor otherwise;
(viii) all advertising, except for any marketing, sales, promotional and trade show materials and all other printed or written materials;
(ix) all Permits (including all of the foregoing permits or licenses described on Schedule 2.1(a)(ix)), and all data and records held by the granting agencies (but only to the extent they relate that the same are transferable or assignable by Seller to Buyer and only to the extent of Seller’s rights therein and thereto);
(x) to the extent transferable or assignable to Buyer, insurance policies and associated prepayments and rights of recovery (other than those related to Excluded Assets or Excluded Liabilities);
(nxi) all Intellectual Property Rights owned or otherwise held by the Company goodwill as part of the Businessa going concern and all other intangible properties, including all Proprietary Rights;
(oxii) all licenses, consents, permits rights and authorisations necessary for use of the Company to carry on name of Seller or any other name used in connection with the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business“Steel City Products”;
(pxiii) all insurance, warranty the right to receive and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale retain mail and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them communications (without retaining any copies thereof);
(r) except to the extent they relate other than those related to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of accountand all telephone numbers, copies of records facsimile numbers, domain names and electronic mail addresses used by Seller (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, but only to the extent such information that the same are transferable or assignable by Seller to Buyer and documentation exists; provided that, only to the Company shall retain the originals in cases where the Buyer obtains copies extent of Seller’s rights therein and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirementsthereto);
(sxiv) capital lease obligations related to capital leases assumed by Buyer that are identified as Assumed Contracts in Schedule 2.1(a)(i);
(xv) all assets and rights of Seller under the value added Tax records Steel City Products, LLC Profit Sharing Plan (the “Profit Sharing Plan”), such Plan for purposes of the Business covering the three (3) financial years preceding the Accounts Datethis Agreement being considered an Assumed Contract; and
(txvi) all other properties, assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, rights owned by Seller at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Sellerwhich Seller has an interest, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless not otherwise Excluded Assets and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject transferable or assignable to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such ContractsBuyer.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sterling Construction Co Inc)
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out in of ---------------- this Agreement, effective at the Closing, the Company agrees to sell and the Buyer Purchaser agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Datefrom Seller, and Seller agrees to sell, transfer, assign and deliver to Purchaser, free and clear of all Liens, all of Seller's right, title and interest in, to and under the assets described in any casethis Section 2.1 and the Schedules hereto (collectively, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located"Purchased Assets"), including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):following:
(a) all of the Business as a going concernfixed and other tangible personal property used on or prior to the Closing Date in connection with the Business, including all computing, laboratory and other capital assets used on or prior to the Closing Date in the design and development of the Intellectual Property Rights and the Products and all Equipment described on Schedule 2.1(a), except tangible personal property listed on Schedule 2.2(a);
(b) the goodwillIntellectual Property Assets (including all of Seller's rights, if anyclaims, credits, causes of action or rights of set-off against third Persons relating to any of the BusinessIntellectual Property Assets), including all of the Intellectual Property Rights listed on Schedule 2.1(b);
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretoAll items of inventory ("Inventory") listed on Schedule 2.1(c);
(d) all interests in leased or subleased real estate design, development and testing tools listed on Appendix 3.1.1(dSchedule 2.1(d), including the Real Property Leases;
(e) all Inventorytangible embodiments of the Intellectual Property Assets, work in progress and raw materialcopies of all tangible embodiments of Intellectual Property Rights relating to Coating, including all documentation, specifications and other information relating to technical or engineering know-how of the Business, the Products or Coating, including reliability testing data and associated procedures and documentation;
(f) subject to Section 2.5, all Fixed Assets, including such assets scheduled Contracts listed on Appendix 3.1.1(fSchedule 2.1(f) (the "Assumed Contracts");
(g) except for any Excluded all Permits that are legally capable of being transferred and are solely related to the Purchased Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”Permits listed on Schedule 2.1(g);
(h) subject to Section 11.6All prepaid expenses, all rights credits, deposits (other than deposits of cash with banks or other financial institutions), claims, prepayments, refunds (other than Tax refunds relating to the employment of the EmployeesPre-Closing Tax Period), including those individuals set forth in Appendix 3.1.1(h) attached heretorebates and other similar amounts listed on Schedule 2.1(h);
(i) the originals or true copies of all records of Taxes Books and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts DateRecords;
(j) all lists and records pertaining to customer accounts (whether past rights of Seller under express or current), suppliers, distributors, personnel and agents implied warranties from third parties who supplied Seller with any of the Business (including without limitation a list of all the customers of the Business during the last two years);Purchased Assets; and
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date goodwill associated with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Subject to the terms and subject to the conditions set out in of this Agreement, and in reliance upon the representations, warranties, covenants and agreements contained herein, at the ClosingClosing (as defined in Section 1.7), the Company agrees Seller shall sell, convey, transfer, assign and deliver to sell the Buyer (or its designee), and the Buyer agrees to (or its designee) shall purchase and acquire from the Seller, free and clear of all assetsLiens (other than Permitted Liens), properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as all of the Closing Date, and in any case, belonging to or intended to be used in assets of the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assetsright, but excluding title and interest to all of the assets relating to the Business and including the assets listed below, owned by Seller or in which Seller has any transferable right, title or interest, other than the Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwillall accounts receivable, if any, relating notes receivable and other receivables that relate to the Business;
(b) all equipment, computers, materials, prototypes, tools, supplies, vehicles, furniture, fixtures, improvements and other tangible assets, including, without limitation, seven (7) controllers which are fixed assets and ten (10) controllers under capital leases;
(c) all Accounts Receivable, notes receivable intangible rights and other amounts receivable from third partiesproperty related to the Business, including customers all Intellectual Property and employeesInformation Technology, goodwill, and all correspondence with respect theretotelephone, telecopy and electronic mail addresses and listings;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including domain names and web sites related to the Real Property LeasesBusiness;
(e) all Inventory, work in progress advertising and raw materialpromotional materials;
(f) all Fixed Assetsright, including such assets scheduled title and interest in, to and under all Contracts listed on Appendix 3.1.1(f)Section 1.1(f) of the Disclosure Schedule, from and after the Closing Date;
(g) except all Permits necessary for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to conduct of the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6all books, all rights records, files and data, including records of and pertaining to the employment accounts of customers and vendors of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached heretoBusiness;
(i) all records the rights under the insurance policies set forth on Section 2.21 of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts DateDisclosure Schedule;
(j) all lists and records pertaining to customer accounts (whether past claims, causes of action or current), suppliers, distributors, personnel and agents rights of recovery of any kind of the Business (including without limitation a list of all Seller against third parties relating to the customers of the Business during the last two years)Purchased Assets, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent;
(k) a list of potential customers all readily available electronic data relating to the Business (including all data as far back in time as readily available but at least dating back to January 1, 2012) other than Personal Information, and all data in all computers included in the Purchased Assets existing as of the Business to which outstanding quotations have been given Closing Date (as at the Closing Date;defined in Section 1.7) other than Personal Information; and
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets currently used in or useful to the operating of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Icad Inc)
Purchased Assets. 3.1.1 Upon Subject to and upon the terms and subject conditions of this Agreement and excluding the assets retained by the Seller as set forth in Section 1.1(b) herein and in Schedule 1.1(a) and the Prepaids in Schedule 1.1(b) attached hereto, as of the "Effective Date" (as defined in Section 1.5 below), the Seller shall sell, transfer, convey, assign and deliver, to the conditions set out in this AgreementBuyer, at the Closing, the Company agrees to sell and the Buyer agrees to shall purchase from the Seller, free and clear of all assetsliens and encumbrances (except for Permitted Liens as defined in Section 2.7), all of the properties, rights, titles assets and interests business as a going concern, of every kind and nature, real, personal or nature mixed, tangible or intangible, wherever located, which are owned, leased, licensed or otherwise held used by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used Seller in the Businessconduct of its business at its offices located at Miami Springs, whether tangible, intangible, real or personal Florida and wherever located, including without limitation all of which exist on the following assets, but excluding all Excluded Assets and Excluded Liabilities, "Effective Date" (as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth defined in Section 3.1.2, 1.5 below) (the “"Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d"), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectivelylimitation, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;following assets:
(i) all records of Taxes office supplies and employer’s fees relating to all similar materials (the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years"Supplies");
(kii) a list all contracts, agreements, leases, arrangements and/or commitments of potential customers of any kind, whether oral or written, relating to the Business to which outstanding quotations have been given Purchased Assets as at set forth on Schedule 2.12 attached hereto (the Closing Date"Contracts");
(liii) a list of unfulfilled orders all customer lists, files, records and documents (including credit information) relating to customers and vendors of the Business as at Purchased Assets and all other business, financial and employee books, records, files, documents, reports and correspondence relating to the Closing DatePurchased Assets (collectively, the "Records");
(miv) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recoverythe Seller, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to if any, under express or implied warranties from the Business, except for any suppliers of the foregoing to Seller in connection with the extent they relate to Excluded Assets or Excluded LiabilitiesPurchased Assets;
(nv) all Intellectual Property Rights furnishings, furniture, fixtures, tools, machinery, equipment and leasehold improvements owned or otherwise held by the Company Seller and related to the Purchased Assets, whether or not reflected as part capital assets in the accounting records of the BusinessSeller (collectively, the "Fixed Assets"), as set forth on Schedule 2.7; and
(vi) all patents, trademarks and tradenames and applications therefor which are owned by the Seller and related to the Purchased Assets, excluding the names "Stratus Services Group, Inc." and SMARTSolutions™;
(ovii) all licensescomputers, consentscomputer programs, permits computer databases, hardware and authorisations necessary for software owned or licensed by the Company to carry on Seller and used in connection with the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the BusinessPurchased Assets;
(pviii) all insurancemunicipal, warranty state and condemnation net proceeds received after federal franchises, licenses, authorizations and permits of the Closing Date with respect Seller which are necessary to damage, non-conformance of operate or loss are related to the Purchased Assets;
(qix) all plans, instructional claims and promotional material, sales publications, advertising materials, terms and conditions rights of sale and other technical material and sales matter which relate Seller related to or arising from the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts DatePurchased Assets; and
(tx) all other assets of any kind or nature of the Company, as applicable, which relate goodwill relating to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Stratus Services Group Inc)
Purchased Assets. 3.1.1 Upon On the terms and subject to the conditions set out forth in this Agreement, at upon the Closing, Purchaser shall purchase from the Company, and the Company agrees shall sell, convey, assign, transfer and deliver to sell Purchaser, all of the Company’s right, title and the Buyer agrees to purchase interest in all properties, assets, properties, rights, titles rights and interests of every kind any kind, whether tangible or nature ownedintangible, leasedreal or personal, licensed used or otherwise held for use by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) free and clear of all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the BusinessLiens, including, without limitation each Material Agreement (collectivelylimitation, the following:
(i) all notes and accounts receivable whether current or non-current, and the right to bill and receive payment for services performed but unbilled or unpaid as of 12:01 a.m. (Eastern Time) on the Closing Date;
(ii) all Cash;
(iii) all contracts, agreements, leases, assignments, licenses, instruments, commitments, obligations and understandings, in any case whether written or oral (“Assigned Contracts”) set forth on Schedule 2.1(a)(iii) with respect to the Company (the “Assumed Contracts”);
(hiv) subject to all insurance policies, prepaid insurance premiums and insurance deposits, including without limitation the policies set forth on Section 11.6, all rights to the employment 4.18 of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached heretoDisclosure Schedules;
(iv) all records of Taxes prepayments and employer’s fees relating to all the Employees duly completed and up to dateprepaid expenses, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of those set forth on Schedule 2.1(a)(v).
(vi) all the customers Intellectual Property, together with all income, royalties, damages and payments due or payable as of the Business during Closing or thereafter (including all Intellectual Property Ancillary Rights with respect thereto and any and all corresponding rights that, now or hereafter, may be secured throughout the last two yearsworld);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(mvii) all claims, depositsrefunds, prepayments, Prepaid Expenses, warranties, guarantees, refundscredits, causes of action, rights of recovery, rights of setoff recovery and rights of recoupment set-off of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilitieskind;
(nviii) all Intellectual Property Rights owned lists, records and other information pertaining to accounts, personnel and referral sources, all lists, records and other information pertaining to suppliers, customers and all drawings, reports, studies, and plans (including all business and marketing plans), in each case whether evidenced in writing, electronic data, Software, or otherwise held by the Company as part of the Businessotherwise;
(oix) all licensesadvertising, consents, permits marketing and authorisations necessary for the Company to carry on the Business, including the Key Permits, promotional materials and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Businessmaterials;
(x) all Governmental Licenses, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirementsassignable;
(sxi) all rights and interests in and to the value added Tax records of Company’s bank accounts to the Business covering the three (3) financial years preceding the Accounts Dateextent transferrable; and
(txii) all other assets of any kind or nature of the Company, goodwill as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any going concern and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contractsother intangible property.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Trump Media & Technology Group Corp.)
Purchased Assets. 3.1.1 Upon On the terms and subject to the conditions set out in of this Agreement, at the ClosingClosing (as defined in Article IV hereof), Seller shall transfer, convey and assign to Buyer, and Buyer shall purchase and acquire from Seller, all of the Company agrees to sell and the Buyer agrees to purchase all assets, propertiesproperties and rights of Seller, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assetsreal, but excluding all Excluded Assets personal and Excluded Liabilitiesmixed, tangible and intangible, as further detailed below and on Appendix 3.1.1 the same shall exist immediately prior to the Closing (together with the assets, properties, rights, titles and interests except for those assets set forth in Section 3.1.21.2 hereof), including, but not limited to, the “Purchased Assets”):following:
(a) the Business as a going concernall machinery, equipment, vehicles, furniture, fixtures, office equipment and supplies and other items of tangible personal property and all warranties relating thereto;
(b) the goodwillall inventories, if anyincluding but not limited to, relating to the Businessvehicles, supplies and parts;
(c) all Accounts Receivableprepaid expenses, notes receivable advances, escrows and other amounts receivable from third partiesdeposits of Seller, including customers and employeesthe benefit of which will accrue to Buyer, and all correspondence with respect theretoexcept for those that specifically relate to Excluded Assets (as defined in Section 1.2) or Excluded Obligations (as defined in Section 2.2);
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(drights of Seller under all contracts, licenses, leases (including rights to leasehold improvements), including the Real Property Leases;permits, commitments, purchase orders, sales orders and other agreements which are described on Schedule 1.1(d) attached hereto; ---------------
(e) all Inventorycash (including, work in progress without limitation, bank accounts, ▇▇▇▇▇ cash and raw materialescrow and other accounts) and accounts and notes receivable;
(f) all Fixed Assetsrights of Seller in and to insurance and indemnity claims relating to the Purchased Business, including such assets scheduled on Appendix 3.1.1(fthe Purchased Assets (as defined in Section 1.1) or the Assumed Obligations (as defined in Section 2.1);
(g) except for any Excluded Assets all trade names, fictitious or Excluded Liabilities assumed names, service marks, service ▇▇▇▇ applications, trademarks, trademark applications, copyrights, copyright applications, patterns, inventions, trade secrets, logos, slogans, proprietary processes and subject to Sections 3.1.5formulae, 3.6 license agreements, research and 11.6development projects and reports, market reports, product or customer surveys, and all rights other proprietary, technical and obligations arising after the Closing existing under all Contracts to which the Company is a party other information and intellectual property rights, whether patentable or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement unpatentable (collectively, the “Assigned Contracts”"Intellectual Property");, and the goodwill associated therewith, including, but not limited to, those described on Schedule -------- 1.1
(h) subject to Section 11.6all records and files, all rights to the employment of the Employeesincluding, including those individuals set forth in Appendix 3.1.1(h) attached heretobut not limited to, property records, maintenance records, engineering records, purchasing and sales records, correspondence with suppliers and customers (both actual and prospective), personnel and payroll records, accounting records, mailing lists, customer and vendor lists and records, sales aids, and computer programs, records, files and related software;
(i) all records of Taxes stationery, purchase orders, forms, invoices, labels, shipping material, catalogs, brochures, art work, photographs, advertising materials, merchandising and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Datedisplay materials;
(j) to the extent transferable, all lists governmental licenses, permits, authorizations and records pertaining to customer accounts (whether past or current)approvals, suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);which are described on Schedule 1.1(j) --------------- attached hereto; and
(k) a list all shares of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) stock or other securities owned by Seller which relate to the Purchased Business, except for any which are described on Schedule 1.1(k) --------------- attached hereto. For convenience of reference, the assets, properties and rights to be transferred, conveyed and assigned to Buyer hereunder, exclusive of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of are herein collectively called "Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts."
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Subject to the terms and subject conditions of this Agreement and to the conditions set out in this Agreementcontinued accuracy of the representations and warranties contained herein, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of on the Closing Date, but giving effect to such transaction as of the Effective Date, Seller will sell, convey, assign, transfer and in any casedeliver to Purchaser and Purchaser will purchase, belonging to receive and accept delivery from Seller, free and clear of all Liens (other than Permitted Liens), all of Seller’s then existing properties and assets (other than the Excluded Assets) of every kind and nature, real, personal or intended to be used in the Businessmixed, whether tangible, tangible or intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 located (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):), including, without limitation, all right, title and interest of Seller in, to and under:
(a) 2.1.1 All of the Business as a going concernassets reflected on the Interim Financial Statement, other than the Excluded Assets and those assets disposed of after the Interim Financial Statement Date in the ordinary course of business consistent with past practice;
(b) the goodwill2.1.2 All equipment, if anyfurniture, relating to the Business;
(c) all Accounts Receivablefurnishings, notes receivable trade fixtures and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests tangible personal property used in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates useful to the Business, including, without limitation each Material Agreement limitation, those listed on Schedule 2.1.2 to be attached hereto on the Closing Date and incorporated herein by this reference (collectively, the “Assigned ContractsFixed Assets”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all 2.1.3 All Intellectual Property Rights owned or otherwise held and used by Seller in connection with the Company Business as part currently conducted that are capable of assignment (“IP Assets”) and the goodwill associated therewith, including, without limitation, the trade name “Economic Analysis LLC”;
2.1.4 All of the BusinessContracts, including, without limitation, the Third Person Licenses;
2.1.5 All rights to payment as a consequence of (oi) deposits and prepayments (excluding pre-paid insurance), including, without limitation, the deposit under the Office Lease and (ii) claims for refunds, rights of set off, rights of recovery in respect of such deposits and prepayments and claims or causes of action relating to the Business or Purchased Assets that arise on or after the Effective Date (except for refunds of Taxes to the extent provided in Section 13.5); provided, however, that nothing in the foregoing shall be construed to prevent Seller from asserting any such rights, claims or causes of action as a defense in any legal proceeding;
2.1.6 Cash in an amount equal to all licensesclient retainer balances which remain outstanding as of the Effective Date;
2.1.7 All creative materials, consents, permits advertising and authorisations promotional materials necessary for the Company to carry on or used in connection with the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Businesswherever stored or located;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of 2.1.8 All files, documents, correspondence, studies, reports, books and records of Seller (including all data and other information stored on discs, tapes or other media), client lists, studies client records and reports credit data, computer programs, software, and other printed hardware owned and used by Seller in connection with the Business (collectively, the “Documents”);
2.1.9 All general intangibles used by or written materials which relate useful to the Business, including, without limitation, all corporate goodwill of Seller;
2.1.10 All other assets of Seller used in or useful to the extent such information and documentation exists; provided thatconduct of the Business, whether or not reflected on the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax books or records of Seller or the Business covering the three (3) financial years preceding the Accounts DateBusiness; and
(t) all other assets 2.1.11 All rights and obligations of any kind or nature of the CompanySeller under that certain Office Lease dated March 21, 2000 by and between Seller and One Hundred Towers L.L.C. for premises at 2049 Century Park East, Suites 2310, 2280 and 2290, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as applicableamended by that certain First Amendment to Office Lease dated as of November 25, which relate to 2002 (the Business other than “Office Lease”), and that certain Standard Form Storage Agreement dated December 2, 2002 by and between Seller and One Hundred Towers L.L.C. (together with the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the ClosingOffice Lease, the “Leases”), together with all leasehold improvements, fixtures and fittings owned or held by Seller agrees to sell under the Leases, and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assetseasements, rights or properties be discovered related to of way and other appurtenants under the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the ParentLeases.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Lecg Corp)
Purchased Assets. 3.1.1 Upon On the terms and subject to the conditions set out in of this Agreement, at on the ClosingClosing Date, the Company agrees Purchaser shall purchase from Seller, and Seller shall sell, convey, assign, transfer and deliver to sell and the Buyer agrees to purchase all Purchaser those properties, assets, properties, rights, titles rights and interests of every kind and nature, whether real or nature ownedpersonal, leasedtangible or intangible, licensed or otherwise held and wherever located and by whomever possessed, to the Company (including indirect and other forms of beneficial ownership) extent that they are owned by Seller as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):which are specified below:
(a) ▇▇▇▇▇ cash held in Seller’s offices identified on Schedule 2.1(a) not to exceed $1,000 per office location plus an amount of cash equal to the Business as a going concernaccrued liabilities through the Closing Date for all Assumed Employees, on account of paid time off and vacation;
(b) the goodwillaccounts and notes receivable as of the Closing Date (whether current or noncurrent), (1) associated with the Other Business Segments and referenced in the details from Seller’s general ledger, balance sheet and income statement, all as of the end of the third calendar quarter of 2006 that are shown on Schedule 2.1(b) (collectively, the “Accounting Data”), and (2) associated with the Resource Center and shown on Schedule 2.1(b); provided, however, that the accounts and notes receivable identified pursuant to clauses (1) and (2) of this sub-section shall be updated to take into account (A) all payments made and other activity prior to the Closing Date and (B) the receipt by Seller prior to the Closing Date of any new accounts and notes associated with the Other Business Segments; and provided, further, that if any, the parties are unable to resolve a dispute whether accounts or notes receivable relating to a particular contract or group of contracts falls within the Business;scope of clause (1) or (2) of this sub-section, they shall refer the dispute for decision by the Accounting Firm, and any determination made by the Accounting Firm shall be binding on both parties.
(c) all Accounts Receivablethe prepayments, notes receivable prepaid expenses, deferred charges, advance payments and other security deposits as of the Closing Date (collectively, the “Prepayments”), (1) associated with the Other Business Segments and referenced in the Accounting Data and (2) associated with the Resource Center and shown on Schedule 2.1(c); provided, however, that the Prepayments identified pursuant to clauses (1) and (2) of this sub-section shall be updated to take into account (A) the application of Prepayments to amounts receivable from third partiesdue and owing to Seller prior to the Closing Date and (B) the receipt by Seller prior to the Closing Date of additional Prepayments associated with the Other Business Segments; and provided, including customers and employeesfurther, that if the parties are unable to resolve a dispute whether a particular Prepayment falls within the scope of clause (1) or (2) of this sub-section, they shall refer the dispute for decision by the Accounting Firm, and all correspondence with respect thereto;any determination made by the Accounting Firm shall be binding on both parties.
(d) all interests inventories and related supplies located at facilities, in leased transit to or subleased real estate listed on Appendix 3.1.1(dfrom Seller’s facilities which are used primarily in the Other Business Segments (the “Inventory”), including the Real Property Leases;
(e) all InventorySeller’s interests in the leases identified on Schedule 2.1(e) as leases to be assigned to Purchaser at Closing (the “Assigned Leases”); any licenses, work in progress permits, approvals and raw materialqualifications related to such Assigned Leases, to the extent such licenses, permits, approvals and qualifications are transferable; provided, however, that (1) Schedule 2.1(e) also identifies any real estate owned by Seller, and (2) neither Purchaser nor the Assumed Employees shall have any right to occupy on and after the Closing Date any of Seller’s office space not leased pursuant to one of the Assigned Leases (the “Retained Premises”), except as mutually agreed by the parties;
(f) Seller’s interests in office equipment excluding all Fixed Assetsoffice equipment located at the Retained Premises (including, including but not limited to, computers, servers, copiers and telephone equipment ) and any leases for such assets scheduled on Appendix 3.1.1(f)equipment to the extent transferable;
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”)[intentionally left blank];
(h) subject to Section 11.6Seller’s interests in furniture, all rights furnishings and fixtures, other than furniture, furnishings and fixtures located at the Retained Premises, and any leases for such assets to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached heretoextent transferable;
(i) all records of Taxes Seller’s interests in (1) intangible assets and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or currentintellectual property set forth on Schedule 2.1(i), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Businessincluding, to the extent such information scheduled thereon, statutory, common law and documentation existsregistered copyrights, patents, domain names, registered and unregistered trademarks, service marks and trade names, trade dress and other names, marks and slogans; provided that(2) publishing and distribution rights, and associated goodwill with respect to materials pertaining to the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Other Business covering the three Segments; (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate know-how and trade secrets pertaining to the Other Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this AgreementSegments; provided, at the Closinghowever, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything nothing in this Agreement shall be construed to restrict the right of Seller to utilize the know-how and trade secrets primarily relating to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights business of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.Corporate Solutions Group;
Appears in 1 contract
Sources: Asset Purchase Agreement (Clark Inc)
Purchased Assets. 3.1.1 Upon the terms On and subject to the conditions set out in this Agreement, at the Closingterms contained herein, the Company Purchaser hereby agrees to sell and the Buyer Seller hereby agrees to purchase from the Purchaser, the Purchased Assets of the Business as a goi ng concern, at the "Effective Day" comprising the following:
(1) all assetsassets of SD Holdings, propertiesincluding all liabilities, rightsall subsidiaries, titles all IP rights to products, if owned by SD Holdings or any subsidiary, comprising but not limited to all copyright and interests all associated all related code, specifications, documentation, revisions, enhancements and modifications thereto, in whatever form and media;
(2) all of every kind the trademarks owned by SD Holdings or nature ownedits subsidiaries;
(3) the benefit of Customer Contracts, leased, licensed or otherwise held subject to assumption of the obligation of performance thereunder by the Company Seller;
(including indirect and other forms 4) the benefit of beneficial ownershipthe Other Contracts, subject to assumption of the obligation of performance thereunder by the Seller;
(5) the benefit of Licensed IP Agreements, subject to assumption of the obligation of performance thereund er by the Seller;
(6) the Work-in-progress;
(7) all inventory of consumable supplies of the Business as of the Closing Date, and in any case, belonging to or intended to be used in Time;
(8) the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all benefit of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):Prepaid Expenses;
(a9) the Equipment;
(10) the lease of the Premises;
(11) the Business as a going concernRecords;
(b12) the goodwill, if any, all marketing and advertising materials relating to the Business, in any format and media whatsoever, and the right, title and interest of the Purchaser in the content thereof;
(c13) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, the telephone numbers of the Business
(14) the internet domain names listed on Schedule 6 attached hereto; and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d)web sites utilizing such domain names, including the Real Property Leases;
(e) right of the Purchaser in all Inventoryprograms and source code utilized therein, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment licenses of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilitiescontent therein.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out in of this AgreementAgreement and pursuant to the Bills of Sale, the Assignment and Assumption Agreements, and the Intellectual Property Assignments, at the ClosingClosing Sellers will sell, the Company agrees assign, transfer, deliver, and otherwise convey to sell Buyers, and the Buyer agrees Buyers will purchase, acquire, and accept from Sellers, free and clear of any Encumbrances except for Permitted Encumbrances, all of Sellers' right, title, and interest in and to purchase all of Sellers' property and assets, propertiespersonal or mixed, rightstangible and intangible, titles and interests of every kind or nature ownedand description, leased, licensed or otherwise held by the Company (including indirect related to and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all conduct of the following assets, MCK Business (but excluding all Excluded Assets and Excluded LiabilitiesAssets), as further detailed below and on Appendix 3.1.1 (together with including the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):following:
(a) all Accounts Receivable, including those set forth in the Business Net Receivables Report, as a going concernattached on Schedule 2.1(a);
(b) all prepaid expenses, as listed on Schedule 2.1(b), and the goodwill, if any, relating to the Businessproceeds of any insurance coverage in respect of an Asset or an Assumed Liability;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretoleasehold interests in the real property listed on Schedule 2.1(c);
(d) all interests in tangible personal property, including all machinery, equipment, tools, furniture, office equipment, computer hardware, supplies, materials, vehicles and other items of tangible personal property of every kind owned or leased by Sellers (wherever located and whether or subleased real estate not carried on Sellers' books), together with any express or implied warranty by the manufacturers, sellers or lessors of any item or component part thereof and all maintenance records and other documents relating thereto, as listed on Appendix 3.1.1(dSchedule 2.1(d), including the Real Property Leases;
(e) all InventoryInventories, work in progress and raw materialas listed on Schedule 2.1(e);
(f) all Fixed AssetsTrademarks, including Copyrights, and Patents, as listed on Schedule 2.1(f), together with any related, legally subsisting rights to use any of the foregoing and all other rights in, to and under the foregoing in all countries in which such assets scheduled on Appendix 3.1.1(f)rights legally subsist;
(g) except for all other intangible assets, including all inventions, shop rights, know-how, Trade Secrets, Domain Names, improvements, processes, formulae, Computer Software, Proprietary Information, specifications and ideas, whether patentable or not, and all drawings, records, books or other indicia, however evidenced, of all of the foregoing, as listed on Schedule 2.1(g), together with any Excluded Assets or Excluded Liabilities related, legally subsisting rights to use any of the foregoing and subject all other rights in, to Sections 3.1.5, 3.6 and 11.6, under the foregoing in all countries in which such rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”)legally subsist;
(h) subject to Section 11.6all creative materials, including photographs, films, art work, color separations and the like, advertising and promotional materials and all rights other printed or written materials, in each case to the employment of extent related to the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;MCK Business; EXECUTION VERSION
(i) all records policies of Taxes insurance and employer’s fees relating to all the Employees duly completed rights thereunder, rights of indemnity from third parties, standby commitments of third parties and up to dateother similar rights of every kind and nature, covering the three (3) financial years preceding the Accounts Dateas listed on Schedule 2.1(i);
(j) all lists the Contracts listed on Schedule 2.1(j) and records pertaining the Confidential Information incident thereto;
(k) the right to customer accounts (whether past or current)receive mail and other communications addressed to Sellers, including mail and communications from customers, suppliers, distributors, personnel licensors, licensees, agents and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claimsothers, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff but excluding mail and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate other communications relating solely to Excluded Assets or Excluded Liabilities;
(nl) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenseslists and records pertaining to customers, consentssuppliers, permits and authorisations necessary for the Company to carry on the Businessdistributors, including the Key Permitslicensors, licensees, resellers, end-users, business partners, personnel, and all material product agents (including softwareoriginal invoices relating to Accounts Receivable and associated evidence of order and shipping) registrationsand all other books, accreditations ledgers, files, documents, correspondence, and business records of every kind and nature, other certifications than records (i) required for by law to be retained by Sellers, copies of which have been furnished to Buyer at or before the Business;
Closing, (pii) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss having no relation to the Purchased Assets;
MCK Business; (qiii) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them current litigation not assumed by Buyer, copies of which have been furnished to Buyer at or before the Closing; and (without retaining any copies thereof);
(riv) except to the extent they relate relating exclusively to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(sm) all claims, refunds, credits, causes of action, choses in action, rights of recovery and rights of set-off of every kind and nature, other than those (i) associated with Excluded Assets or Excluded Liabilities or (ii) having no relation to the value added Tax records MCK Business;
(n) all rights under all outstanding purchase orders issued to OEMW Worldwide, LLC ("OEMW") that are unfulfilled (in whole or in part) as of the Business covering Closing (the three "OEMW OPEN ORDERS"), as set forth on Schedule 2.1(n)(i), and all outstanding sales orders as set forth on Schedule 2.1(n)(ii) (3) financial years preceding the Accounts Date"SALES ORDERS"); and
(to) all other assets of any kind or nature of the Company, goodwill as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms a going concern and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained goodwill associated with the Seller or the CompanyAssets described in Sections 2.1(f), then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be2.1(g), and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts2.1(h).
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Seller agrees to sell to the Partnership designated by Buyer at the Closing (as defined below), and Buyer agrees to cause the Partnerships to purchase, free and clear of all liens and obligations (except those which Buyer has expressly agreed in Section 1.4 to assume), on the terms and subject to the conditions set out forth in this Agreement, at all of the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles business and interests assets of Seller relating to either or both of the Surgery Centers of every kind and description, real, personal and mixed, tangible and intangible, wherever located (except those assets of Seller which are specifically excluded from this sale by Section 1.2 hereof), as they shall exist at the Closing (collectively, the "Purchased Assets"). Without limiting the generality of the foregoing, the Purchased Assets shall include the following assets relating to either or nature ownedboth of the Surgery Centers:
1.1.1 all equipment, leasedsurgical instruments, licensed leasehold improvements, construction in progress, furniture, fixtures and other fixed assets owned by Seller relating to either or otherwise held by both of the Company Surgery Centers (the "Fixed Assets");
1.1.2 all supplies and inventories (including indirect medicines and other forms consumables) of beneficial ownership) as Seller relating to either or both of the Closing Date, and in any case, belonging to or intended to be used in Surgery Centers (the Business, whether tangible, intangible, real or personal and wherever located"Inventory");
1.1.3 all receivables, including without limitation all accounts receivable arising in the ordinary course of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as business of a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts ReceivableSurgery Center, notes receivable and insurance proceeds receivable, except as provided in Section 1.2(d) and except that, with respect to accounts receivable arising from the Medicare, Medicaid or other amounts receivable from third partiesgovernmental programs, the Purchased Assets shall include only the proceeds of such governmental receivables (the "Receivables");
1.1.4 all of the interest of, and the rights and benefits accruing to Seller as lessee under, all leases or rental agreements covering equipment, furniture, fixtures and other personal property described in Schedule 1.1.4 (the "Equipment Leases");
1.1.5 all of the rights and benefits accruing to Seller under all contracts (other than the Equipment Leases and Seller's rights under its existing lease of the South Houston Real Property) made by Seller in the ordinary course of business of a Surgery Center that are listed on Schedule 1.1.5 (the "Contracts");
1.1.6 all of the rights and benefits accruing to Seller as lessee under the South Houston Lease (as defined in Section 2.7);
1.1.7 all operating data and records, including customers without limitation medical records, personnel files, financial, accounting and employeescredit records, correspondence, budgets and other similar documents and records, whether on paper or computer stored and whether maintained by Seller or by an independent contractor on behalf of Seller (the "Records"), except as provided in Section 1.2 (b);
1.1.8 all trade names (including the names "Surgery Center of South Houston" and "Surgery Center of Pasadena"), goodwill, computer software, operating rights, telephone and facsimile numbers, other licenses and permits and other intangible property and rights relating to the business of a Surgery Center, as and to the extent transferable under applicable laws (the "Intangible Assets"), and all correspondence with respect thereto;
(d) all interests in leased state or subleased real estate listed on Appendix 3.1.1(d)federal certificates of need, including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations or authorizations necessary for the Company to carry on operation of the Business, including the Key Permits, Surgery Centers and all material product (including software) registrations, accreditations and other certifications required for participation of any Surgery Center in the Business;
(p) all insurance, warranty Medicare and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer Medicaid programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided thatcertificates of need, licenses, permits or authorizations are transferable (the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements"Permits");
(s) 1.1.9 all prepaid and deferred items, including prepaid rentals, insurance, taxes, unbilled charges and deposits relating to the value added Tax records operations of the Business covering Surgery Centers (the three (3) financial years preceding the Accounts Date"Prepaid Items");
1.1.10 $60,000 cash and cash equivalent assets of Seller; and
(t) 1.1.11 the land that is described on Schedule 1.10, together with all other assets of any kind or nature buildings and improvements thereon, that are part of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded LiabilitiesPasadena Real Property.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Seller agrees to and does hereby sell, transfer, assign, convey and deliver to Purchaser, and Purchaser hereby agrees to and does hereby purchase and acquire from Seller, free and clear of all liens, encumbrances, claims, restrictions, security interests, obligations and liabilities except as otherwise expressly provided herein, all of the terms assets that are owned by Seller or that are used or useful by Seller in the operations or business of Seller at the Effective Time except the Excluded Assets (as hereinafter defined), including in the assets being purchased and subject sold hereunder, without limiting the generality of the foregoing, the following assets as the same shall exist at the Effective Time (which assets being acquired are hereinafter collectively called the "Purchased Assets"):
1.1.1. all furniture, furnishings, fixtures, leasehold improvements, equipment and other fixed assets, including, without limitation, the assets listed on Schedule 1.1.1;
1.1.2. all of Seller's rights, title, and interest in and to all software owned by Seller or licensed to Seller by third parties, including all documentation, source codes, software modules and enhancements and software in development;
1.1.3. all inventories including marketing materials (including video tapes, brochures, and the like), spare parts and supplies;
1.1.4. all of Seller's rights under all leases, contracts (including software license agreements and maintenance agreements), agreements, and sales orders, including but not limited to those leases, contracts, agreements, and sales orders listed on Schedule 1.1.4 (the "Purchased Contracts");
1.1.5. all prepaid and deferred items including prepaid rentals and deposits;
1.1.6. all operating and financial data and information and books and records relating to the conditions set out in this Agreement, at Purchased Assets or the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests business or operations of every kind or nature owned, leased, licensed or otherwise held by the Company Seller (including indirect and other forms of beneficial ownership) as of the Closing Date, wherever located and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal every format and wherever locatedmedia whatsoever), including without limitation software databases, written records, personnel files (but only as to personnel hired by Purchaser and only with their knowledge), files, policies, customer lists, mailing lists, supplier lists, credit information, correspondence, designs, slogans, processes, know-how, trade secrets, and other similar property;
1.1.7. all intellectual property rights of the following assetsSeller, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, including Seller's rights, titles title and interests set forth interest in Section 3.1.2and to all United States and foreign patents (including all reissues, the “Purchased Assets”):
(a) the Business as a going concerndivisions, continuations and extensions thereof), patent applications, patent disclosures docketed, copyrights, trademarks, trademark rights, trademark applications, trade names, service marks, service ▇▇▇▇ rights, service ▇▇▇▇ applications and licenses;
(b) the goodwill1.1.8. all registrations, if anypermits, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits approvals and authorisations necessary for qualifications of Federal, State, local or other government agencies relating to the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance business or operations of Seller or loss to the Purchased Assets;
(q) 1.1.9. all plans, instructional rights to warranties and promotional material, sales publications, advertising materials, terms and conditions of sale and guarantees or other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material claims relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assetsincluding without limitation rights under agreements for the supply of equipment or leasehold improvements;
1.1.10. all rights to the use of Seller's name "Summit Temporaries, rights Inc." and properties shall forthwith be promptly transferred derivatives thereof, all past corporate names of Seller and all other names used or previously used by the Seller or its predecessors in its business; and
1.1.11. the Company, as the case may be, goodwill relating to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent's business.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Personnel Management Inc)
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the The “Purchased Assets”):” are the following assets used in or derived from the Company's Wedding Business:
(a) All customer deposits for weddings, albums, and associated products and services received by the Business as a going concern;Company prior to the Closing that relate to the Transferred Contracts (“Deposits and Remittances”)
(b) the goodwill, if any, all accounts receivable relating to the BusinessTransferred Contracts;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;The Purchased Intellectual Property defined in Section 7.2 hereto.
(d) all interests in leased or subleased real estate (i) The trademarks, domains and websites listed on Appendix 3.1.1(dSchedule 7.2 in connection with the Goods and Services, all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith (the Trademarks), including (ii) customer lists, pricing and cost information, (iii) websites and domain names listed on Schedule 7.2, (iv) the Real right to ▇▇▇ and recover for future infringements, misappropriations or other conflict with any Purchased Intellectual Property Leasesoccurring after the Closing Date;
(e) all Inventoryrights in, work in progress to and raw materialunder the Contracts set forth on Schedule 1.2(d) (ii), including all open customer orders set forth thereon and all receivables due after the Closing Date pursuant to such Contracts (the “Transferred Contracts”);
(f) all Fixed Assetsrecords, including such assets scheduled on Appendix 3.1.1(f)files and documents relating to the Transferred Contracts;
(g) except all printed or electronic copies of marketing materials, logos, style guides and other materials for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”Wedding Business as set forth on Schedule 1.2(g);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff defenses or counterclaims and rights of recoupment set-off of every any kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets known or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material unknown relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Purchased Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, Assumed Liabilities but only to the extent such information claims, causes of action, and documentation exists; provided that, rights of set-off arise after the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirementsClosing;
(si) contact information for the value added Tax records network of photographers and videographers used by the Company in the Wedding Business (the “Photographer Network”). The definition of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from not include any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer items other than those listed in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything above in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts1.2.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cpi Corp)
Purchased Assets. 3.1.1 Upon The Purchased Assets are all of the terms following ---------------- assets of Sellers used in the Business (the "Purchased Assets"): ----------------
(a) attached hereto, together with all components, fixtures, parts, ------ appurtenances, and subject equipment attached to or made a part thereof that are existing, under construction or for which Sellers have any rights (collectively, the "Structures"); ----------
(c) all rights under existing and pending sales of advertising and advertising contracts listed on Schedule 2.2(c) attached hereto (collectively, --------------- the "Advertising Contracts") to the conditions set out in this Agreement, at extent associated with the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) Structures as of --------------------- the Closing Date, and in any case, belonging all other existing advertising contracts to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together extent associated with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwill, if any, relating Structures entered into on or prior to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretoClosing Date;
(d) all interests in leased or subleased real estate rights under existing wireless communications contracts for antennae attached to the Structures, which wireless communications contracts are listed on Appendix 3.1.1(d), including the Real Property Leases;Schedule 2.2(d) attached hereto; ---------------
(e) all Inventoryof the real property owned in fee by Sellers and utilized in the Business (the "Owned Real Property") and all structures located thereon, work in progress and raw material;
(f------------------- each case as listed on Schedule 2.2(e) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);attached hereto; ---------------
(g) except for any Excluded Assets or Excluded Liabilities all pertinent Books and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”)Records;
(h) subject to Section 11.6, all rights to the employment tangible personal property owned by Sellers and used exclusively in the operation of the Employees, including those individuals set forth in Appendix 3.1.1(hBusiness listed on Schedule 2.2(h) attached --------------- hereto;; and
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business rights (including without limitation a list of all the customers of the Business during the last two yearsany benefits arising therefrom);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights claims and demands of recovery, rights of setoff and rights of recoupment of every kind and whatever nature (including rights to insurance proceedswhether or not liquidated) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss Sellers relating to the Purchased Assets;
(q) , including, without limitation, condemnation rights and proceeds, and all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with rights against suppliers under warranties covering any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Entravision Communications Corp)
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out in of this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company Agreement (including indirect and other forms of beneficial ownership) as of Section 9.13), on the Closing Date, Seller and in any caseSeller Subsidiary shall sell, belonging transfer, assign, convey and deliver to or intended to be used in Buyer, and Buyer shall purchase from Seller and Seller Subsidiary, on a going concern basis, free and clear of all Encumbrances (except for Permitted Encumbrances), all of the Businessbusiness and operations of Seller and Seller Subsidiary and the goodwill associated therewith and all of the assets and properties of Seller and Seller Subsidiary of every kind and description, whether tangible, intangible, real or personal and wherever located, including without limitation all of real, personal or mixed, tangible or intangible, as the following assetssame shall exist on the Closing Date, but excluding all other than Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, herein collectively called the “Purchased Assets”):), including, all right, title and interest of Seller and Seller Subsidiary in, to and under:
(a) all of the assets reflected on the Balance Sheet and the Subsidiary Balance Sheet, except for Excluded Assets and except for those assets disposed of or converted into cash after the Balance Sheet Date in the ordinary course of the Business as a going concernconsistent with past practice;
(b) all client deposits and prepayments for work not completed as of the goodwillClosing Date (“Deposits”), if any, relating to including the BusinessDeposits set forth on Schedule 2.1(B);
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretothe Governmental Permits listed in Schedule 5.9;
(d) all interests the equipment, furniture and other personal property listed or referred to in leased or subleased real estate listed on Appendix 3.1.1(d)Schedule 5.12, including other than the Real Property LeasesExcluded Personal Property;
(e) all InventoryIntellectual Property (and all goodwill associated therewith), work in progress and raw materialother than the Excluded Intellectual Property;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(fthe contracts and other agreements listed in Schedule 2.1(F) (the “Seller Agreements”) and the client engagements listed in Schedule 2.1(F) and the clients to which Seller has made proposals as listed in Schedule 2.1(F);
(g) all client relationships, client work papers (except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Businessextent that such client work papers relate to completed client engagements), including, without limitation each Material Agreement (collectively, the “Assigned Contracts”)client work product and client lists;
(h) subject to Section 11.6the Software listed in Schedule 5.14(B), all rights to other than the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached heretoExcluded Software;
(i) all records rights, claims or causes of Taxes and employer’s fees action against third parties relating to the assets, properties, business or operations of Seller arising out of transactions occurring prior to the Closing Date; provided that Seller or Seller Subsidiary, as the case may be, shall retain all rights to indemnification or contribution thereunder to the Employees duly completed and up extent such rights relate to date, covering matters prior to the three (3) financial years preceding the Accounts Closing Date;
(j) all lists publications, know how, developments, models, databases, computer files, training programs, inventories, books and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years)data and other information stored on discs, tapes or other media) including sales, advertising and marketing materials, but excluding all financial books and records;
(k) a list copies of potential customers all financial books and records of the Business to which outstanding quotations have been given as at the Closing Date;Seller and Seller Subsidiary; and
(l) a list of unfulfilled orders of the Business as at the Closing Date;
all telephone and telephone facsimile numbers (m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets owned by Seller or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licensesSeller Subsidiary), consentsInternet sites, permits Internet domain names, URLs and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations addresses and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the directory listings utilized by Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such paymentSubsidiary.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon the terms Seller agrees to sell, assign and subject transfer to the conditions set out in this AgreementOrbital, and Orbital agrees to purchase from Seller at the Closing, the Company agrees to sell all Seller's right, title and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) interest as of the Closing DateDate in and to all assets, properties and in any caserights of Seller, belonging to tangible and intangible, owned or intended to be used by Seller that are principally used in or principally relate to the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilitiesspecific assets set forth below, as further detailed below and such assets exist on Appendix 3.1.1 the Closing Date (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2"Purchased Assets"). Notwithstanding the foregoing, the “Purchased Assets shall not include the Excluded Assets”):.
2.1.1. All inventory held by or for Seller (athe "Inventory") for use in the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents conduct of the Business (including without limitation a list raw material, work in process, finished goods, service parts and supplies), including without limitation the inventory set forth on Schedule 3.3 to the extent not sold in the ordinary course of all business prior to the customers Closing Date.
2.1.2. All furniture, fixtures, equipment, machinery, computer hardware, parts, tools, dies, jigs, automobiles, trucks, tractors, trailers, chemicals and other tangible personal property held by or for Seller and principally used in the conduct of the Business, including without limitation the items set forth on Schedule 3.3 to the extent not consumed or disposed of in the ordinary course of business prior to the Closing Date.
2.1.3. Accounts receivable of Seller arising from the conduct of the Business during (other than the last two yearsRetained Receivables);, including without limitation the
2.1.4. All claims and similar rights (kand benefits arising therefrom) a list of potential customers Seller, including without limitation all warranty rights against suppliers, principally related to or principally arising out of the Business or the Purchased Assets.
2.1.5. All governmental permits, authorizations, licenses, orders, registrations, certificates, variances, approvals, consents, franchises and directives set forth on Schedule 3.20(a).
2.1.6. All Seller's rights under the Contracts, including without limitation all Seller's rights under those Contracts listed on Schedule 3.22.
2.1.7. All Business Intellectual Property Rights of Seller, including without limitation those set forth on Schedule 3.6.1.
2.1.8. All books and records of Seller that pertain principally to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at or the Closing Date;Purchased Assets, including without limitation customer lists, customer records, Tax Returns and other information, distributor lists, supplier lists, mailing lists, business and marketing plans, product brochures and other advertising and marketing material, studies, reports, payroll, inventory, maintenance and asset history records, ledgers, books of original entry and all historical source data and other information electronically stored or otherwise recorded.
(m) all 2.1.9. All claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, choses in action, rights of recovery, rights of setoff set off and rights of recoupment of every kind and nature (including rights to insurance proceeds) which Seller that relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate principally to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred 2.1.10. All rights of Seller to or in connection with prepaid expenses principally relating to the Buyer Business or Purchased Assets, including without limitation the prepaid expenses of Seller set forth on the Closing Date free and clear from any EncumbrancesStatement.
3.1.4 If2.1.11. All the outstanding capital stock of the following Subsidiaries of Seller: Engineering Technologies, following the Closing DateInc., any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Companya Virginia corporation, and CTA Commercial Systems, a Virginia corporation (together with their direct and indirect Subsidiaries, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment"Acquired Subsidiaries").
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Orbital Sciences Corp /De/)
Purchased Assets. 3.1.1 Upon On the terms and subject to the conditions set out in of this Agreement, at the ClosingClosing (as defined in Section 8.1), the Company agrees Purchaser shall purchase from Seller, and Seller shall sell, convey, assign, transfer and deliver to sell Purchaser, all of Seller's right, title and the Buyer agrees interest in and to purchase all properties, assets, properties, rights, titles rights and interests of every kind and nature, whether real or nature ownedpersonal, leasedtangible or intangible, licensed or otherwise held and wherever located and by the Company (including indirect and other forms of beneficial ownership) whomever possessed, owned by Seller as of the Closing Dateor arising therefrom or in connection therewith, and in any case, belonging related to or intended to be used in the Businessin, whether tangibleor otherwise associated with, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement limitation, all of the following assets (but excluding all Excluded Assets as defined in Section 1.2 below):
(1) all accounts and notes receivable (whether current or noncurrent) as of the Closing Date (collectively referred to herein as the "Receivables"), a list, description and aging of which as of May 31, 1999, is set forth on the "Receivables Schedule" attached hereto as Schedule 1.1(a);
(2) all prepayments, prepaid expenses, deferred charges, advance payments and security deposits as of the Closing Date;
(3) all inventories and related supplies;
(4) all interests in leased real estate (including, without limitation, land, buildings and improvements), whether any such buildings or improvements are owned in fee, leased or otherwise, including but not limited to, the leases of the real estate and all buildings located thereon, which are described in the "Leases Schedule" attached hereto as Schedule 1.1(d);
(5) all interests in plant, machinery and equipment, fixtures, fittings, furniture, automobiles, trucks, tractors, trailers and other vehicles, tools, spare parts and supplies and other tangible personal property, whether owned, leased or otherwise (including, without limitation, items which have been fully depreciated or expensed), including, without limitation, such items as are set forth in the "Equipment Schedule" attached hereto as Schedule 1.1(e);
(6) all insurance reserves and deposits (including, without limitation, reserves and deposits relating to workmen's compensation) included in the Latest Balance Sheet (defined below);
(7) all intangible assets and intellectual property (including, without limitation, registered and unregistered trademarks, service marks and trade names, trade dress and other names, marks and slogans, including the name "SIMCO" and all variations and permutations thereof except as otherwise specifically provided in Section 1.2 hereof), all publishing and distribution rights, and all associated goodwill; all statutory, common law and registered copyrights; all inventions, shop rights, know-how, trade secrets and confidential information; and all registration applications for any of the foregoing; together with all rights to use all of the foregoing forever and all other rights in, to, and under the foregoing in all countries (collectively, the “Assigned Contracts”"Proprietary Rights");
(h8) all discoveries, improvements, processes, formulae (secret or otherwise), data, confidential information, engineering, technical and shop drawings, specifications and ideas, whether patentable or not, all licenses and other similar agreements, and all drawings, records, books or other indicia, however evidenced, of the foregoing;
(9) subject to Section 11.6all rights existing under contracts, leases, licenses, permits, supply and distribution arrangements, sales and purchase agreements and orders, employment and consulting agreements, consignment arrangements, warranties, consents, orders, registrations, privileges, franchises, memberships, certificates, approvals or other similar rights and all other agreements, arrangements and understandings, including, without limitation, all rights to existing under the employment of contracts listed on the Employees, including those individuals set forth Contracts Schedule and the Customer Contracts Schedule (as defined in Appendix 3.1.1(h) attached Section 3.12 hereto);
(i10) the right to receive all records of Taxes mail and employer’s fees relating other communications addressed to all the Employees duly completed Seller (including, without limitation, mail and up to datecommunications from customers, covering the three (3) financial years preceding the Accounts Datesuppliers, agents and others and accounts receivable payments);
(j11) all lists and records pertaining to customer accounts (whether past or current)customers, suppliers, distributors, personnel and agents and all other books, ledgers, files, documents, correspondence, plats, architectural plans, drawings and specifications, computer programs and business records of the Business (including without limitation a list of all the customers of the Business during the last two years)every kind and nature;
(k12) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Dateall business and marketing plans and proposals and pricing and cost information;
(l13) a list of unfulfilled orders of the Business as at the Closing Dateall computer software and systems, including licenses related thereto, proprietary or otherwise, and related source codes, data and documentation;
(m14) all creative materials (including, without limitation, photographs, films, art work, color separations and the like), advertising and promotional materials and all other printed or written materials;
(15) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recoverychoses in action, rights of setoff recovery and rights of recoupment set-off of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilitiesnature;
(n16) all Intellectual Property Rights owned or otherwise held by the Company goodwill as part of the Businessa going concern and all other intangible property;
(o17) all licensesinterest in and to telephone numbers, consentsproperty addresses, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, e-mail addresses and all material product (including software) registrations, accreditations listings pertaining to Seller in all telephone books and other certifications required for directories and other communications media, except those to be retained by The ▇▇▇▇▇▇▇ Group, Inc. as set forth in the Business"▇▇▇▇▇▇▇ Retained Property Schedule" attached hereto as Schedule 1.1(q) ;
(p18) all insurance, warranty and condemnation net proceeds received after certain assets used by Seller to conduct the Closing Date with respect to damage, non-conformance "▇▇▇▇▇▇▇ Industrial" division business of or loss to Seller as set forth in the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof"▇▇▇▇▇▇▇ Equipment Schedule" attached hereto as Schedule 1.1(r);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t19) all other assets property not referred to above which is represented on Seller's Latest Balance Sheet (as defined in Section 3.4) or acquired by Seller thereafter (except for such property which has been sold or otherwise disposed of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition ordinary course of Purchased Assetsbusiness).
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out forth in this Agreement, and except for the Excluded Assets, the Sellers shall sell, transfer, convey, assign and deliver to the Purchasers at the Closing, the Company agrees to sell and the Buyer agrees Purchasers shall purchase and accept from the Sellers, free and clear of all Encumbrances other than Closing Encumbrances, all right, title and interest of the Sellers in, to purchase and under, all assets, of the Sellers’ assets and properties, rightsreal, titles personal or mixed, tangible and interests of every kind intangible, wherever situated, held, owned or nature owned, leased, licensed that are used in, useful in, allocated to, necessary to, required for the conduct of, or otherwise held by generated from the Company (including indirect and other forms of beneficial ownership) as of the Closing Dateoperation of, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):
i. Seller IP (aas defined in Section 4.8), including, without limitation, those items listed on Schedule 2.1(a) and the rights to use the software set forth on Schedule 2.1(a);
ii. the Contracts of the Sellers listed on Schedule 2.1(b) (collectively, the “Transferred Contracts”);
iii. all Tangible Personal Property, including, without limitation, those items set forth on Schedule 2.1(c);
iv. copies of books of account, general, financial and accounting records (excluding Tax Returns), files, invoices, customers and suppliers lists, other distribution lists, billing records, engineering records, drawings, blueprints, schematics, manuals and customer and supplier correspondence owned by the Sellers, but only to the extent relating primarily to the Business as a going concern(“Books and Records,” which term does not include Tax Returns) including the employee records of the Transferred Employees;
(b) the goodwillv. deposits, if anyadvance payments, accounts receivable, prepaid items and expenses, deferred charges, rights of offset and credits and claims for refund relating to the Business;
(c) all Accounts Receivablevi. Claims, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, causes of action against third parties and all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees insurance proceeds relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance destruction or impairment of or loss to the Purchased Assets;
vii. licenses, Permits, consents and certificates of any Governmental Authority issued to or held by the Sellers necessary or incidental to the conduct of the Business (q) all plansto the extent the same are transferable), instructional and promotional materialincluding, sales publicationswithout limitation, advertising materialsthose that are listed on Schedule 2.1(g);
viii. fee, terms and conditions of sale leasehold and other technical material title interests in, to or under the Owned Real Property and sales matter which relate to Leased Real Property described on Schedule 2.1(h) (the Business“Property”), together with any platesall improvements, blocks, negatives buildings and similar material relating to them (without retaining any copies thereof)fixtures located thereon or therein and owned by Sellers and all construction in progress of Sellers;
(r) except to ix. goodwill associated with the extent they relate to Excluded Purchased Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies particular and the Company shall retain copies Business in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Dategeneral; and
(t) all x. other assets and properties of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid whatsoever held by the Seller Sellers and used in, useful in, allocated to, necessary to, required for the conduct of or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted generated from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Frontier Oilfield Services Inc)
Purchased Assets. 3.1.1 Upon Subject to the terms and subject to the conditions set out in of this Agreement, at on the ClosingClosing Date, Seller will sell, convey, assign, transfer and deliver to Purchaser and Purchaser will purchase, receive and accept delivery from Seller, free and clear of all Liens (other than Permitted Liens), all of Seller’s then existing properties and assets (other than the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests Excluded Assets) of every kind and nature, real, personal or nature ownedmixed, leasedtangible or intangible, licensed wherever located, used in connection with the Business (collectively, the “Purchased Assets”), including, without limitation, all right, title and interest of Seller in, to and under:
2.1.1 All equipment and physical plant, including, without limitation, furniture, furnishings, trade fixtures, leasehold improvements, computers, servers, telephone equipment and all other owned and leased tangible personal property used in or otherwise held useful to the Business as listed on Schedule 2.1.1 attached hereto and incorporated herein by this reference (the Company “Fixed Assets”);
2.1.2 All of the assets reflected on the Interim Financial Statement, other than the Excluded Assets and those assets disposed of after the Interim Financial Statement Date in the ordinary course of business consistent with past practice;
2.1.3 All Intellectual Property Rights owned and used by Seller in connection with the Business as currently conducted that are capable of assignment (including indirect “IP Assets”) and other forms the goodwill associated therewith, including, without limitation, the trade names “▇▇▇▇▇ Private Capital,” “▇▇▇▇▇ Standard Analysis” and “▇▇▇▇▇”;
2.1.4 All of beneficial ownershipthe Contracts, including, without limitation, the Third Person Licenses;
2.1.5 All rights to payment as a consequence of (i) deposits and prepayments, including, without limitation, the deposit under the 300 Sublease and the 420 Office Lease, listed on Schedule 2.1.5 attached hereto and incorporated herein by this reference, and (ii) refunds, rights of set off, rights of recovery, rights to payment or proceeds under contracts of insurance to the extent applicable to an Assumed Liability, and claims or causes of action relating to the Purchased Assets that arise on or after the Closing (except for refunds of Taxes to the extent provided in Section 11.3); provided, however, that nothing in the foregoing will be construed to prevent Seller from asserting any such rights, claims or causes of action as a defense in any legal proceeding;
2.1.6 Cash in an amount equal to the sum of (a) all client retainer balances that have been paid but not applied as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
Schedule 2.1.6 and (b) payments received from clients for services that have not been rendered as of the goodwillClosing Date, if any, relating to the Businessas set forth in Schedule 2.1.6;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased 2.1.7 All general intangibles used by or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates useful to the Business, including, without limitation each Material Agreement (collectivelylimitation, the “Assigned Contracts”)all corporate goodwill of Seller;
(h) subject to Section 11.6, all rights 2.1.8 All other assets of Seller used in or useful to the employment conduct of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any whether or not reflected on the books or records of the foregoing to the extent they relate to Excluded Assets Seller or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses2.1.9 All creative materials, consents, permits advertising and authorisations promotional materials necessary for the Company to carry on or used in connection with the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Businesswherever stored or located;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of 2.1.10 All files, documents, correspondence, studies, reports, books and records of Seller (including all data and other information stored on discs, tapes or other media), client lists, studies client records and reports credit data, computer programs, software, and other printed or written materials which relate to hardware owned and used by Seller in connection with the Business, to the extent such information and documentation exists; provided thatBusiness (collectively, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date“Documents”); and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, 2.1.11 All rights and properties shall forthwith be promptly transferred obligations of Seller under (i) that certain Sublease dated December 12, 2003, by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the between Seller, as subtenant, and ▇▇▇▇▇▇ Engineering, Inc., as sublandlord, for the case may bepremises at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Road, thereunder. The Company Suite 300, Lake Oswego, Oregon 97035, as amended on July 7, 2004 to include Suite 320 and as amended in July, 2005 to include Suite 310 (the “300 Sublease”).
2.1.12 All rights and obligations of Seller under that certain Office lease dated on or the about May 1, 2004, by and between Seller, as the case may betenant, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the CompanyEOP-▇▇▇▇▇ ▇▇▇▇▇, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the SellerL.L.C., as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expenselandlord, for the benefit of the Buyerpremises at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Road, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligationsSuite 420, Lake Oswego, Oregon 97035, as applicableamended on July 12, any 2004 to include Suite 410 and all rights of on March 31, 2005 to reduce the Company or leased premises (the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts“420 Office Lease”).
Appears in 1 contract
Sources: Asset Purchase Agreement (Lecg Corp)
Purchased Assets. 3.1.1 Upon collectively referred to as the terms "Purchased Assets"), including, without limitation, all right, title and subject interest of DMI and Quixote in, to and under the following: (a) all of the assets reflected on the Certified Valuation Date Statement, other than any assets disposed of or otherwise converted into cash after September 30, 1996 in the ordinary course of business and in compliance with this Agreement; (b) all cash and cash equivalents, including deposits and prepaid expenses (other than Excluded Assets); (c) except as provided in Section 2.2, all notes and accounts receivable generated by the Business; (d) all raw materials, supplies, work-in-process and other materials included in the inventory of the Business; (e) the Governmental Permits; (f) the Owned Real Property (other than the Huntsville Owned Real Property) listed on Schedule 5.10; (g) the real estate leases and leasehold improvements listed or described on Schedule 5.11; (h) the machinery, equipment, vehicles, furniture and other personal property listed or described on Schedule 5.13; (i) the personal property leases listed on Schedule 5.14; (j) the Copyrights, Patent Rights and Trademarks (and all goodwill associated therewith), and the agreements, contracts, licenses, sublicenses, assignments and indemnities, listed on Schedule 5.15 (except as otherwise noted thereon); (k) the Software listed on Schedule 5.15 (except as otherwise noted thereon); (l) the contracts, agreements or understandings listed or described on Schedule 2.3(b)(except as otherwise noted thereon); (m) all Trade Secrets and other proprietary or confidential information used in, dedicated to or necessary for the Business; (n) except with respect to the conditions set out litigation specifically so indicated on Schedule 5.22, all rights, claims or causes of action against third Persons relating to the assets and properties described in this AgreementSection 2.1 or the Business arising out of transactions occurring prior to the Closing Date; (o) all books and records (including all data and other information stored on discs, at tapes or other media) relating to the Closingassets and properties described in this Section 2.1 or the Business; (p) Quixote's and DMI's interest in and to all telephone, telex and telephone facsimile numbers and other directory listings utilized primarily in connection with the Company agrees to sell Business; and the Buyer agrees to purchase (q) except as otherwise expressly provided in this Section 2.1: (i) all assets, properties, of Quixote's and DMI's other rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect in and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectivelylimitation, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights any of their business activities relating to the employment manufacture, sale and distribution of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
multimedia and/or optical discs; (iii) all records of Taxes Quixote's and employer’s fees relating DMI's right, title and interest in and to all the Employees duly completed Prospectus Plus, Inc., Emerald Multimedia, Inc., DMI do Brazil Ltd. and up to dateMyriad Entertainment, covering the three Inc.; and (3) financial years preceding the Accounts Date;
(jiii) all lists of Quixote's and records pertaining to customer accounts (whether past or current)DMI's right, suppliers, distributors, personnel title and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff interest in and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Businessnames "Disc Manufacturing, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits Inc." and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities"DMI.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts." A-7
Appears in 1 contract
Purchased Assets. 3.1.1 Upon On the terms and subject to the conditions set out in of this Agreement, Seller shall, at the Closing, sell, transfer, convey, assign, grant and deliver to Purchaser, and Purchaser shall, at the Company agrees Closing, purchase and acquire from Seller, free and clear of all Liens (except as set forth on Schedule 2.1), all right, title and interest in and to sell and the Buyer agrees to purchase all assets, properties, rights, titles interests, tangible and interests intangible assets of every kind or nature owned, leased, licensed or otherwise held by the Company Seller (including indirect and other forms of beneficial ownershipthan Excluded Assets) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;limitation:
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts DateFF&E;
(jii) all lists Receivables;
(iii) all Inventory;
(iv) the Purchased Contracts;
(v) all patents, copyrights, trademarks and records pertaining to customer accounts service marks (whether past registered or currentunregistered), suppliersall names (and variations thereof), distributorsall assumed fictional business names and trade names, personnel and agents of including without limitation, the Business items set forth on Schedule 2.1(v) hereto;
(vi) all other Intellectual Property, including without limitation a list of all the customers of the Business during the last two yearsIntellectual Property described on Schedule 2.1(vi);
(kvii) a list of potential customers of the Business to which outstanding quotations have been given as all design tools, order management and other management tools, manufacturing tools and test equipment, including laboratory testing equipment, whether located at the Closing Datefacilities of Seller or the facilities of a third party;
(lviii) a list of unfulfilled orders of the Business as at the Closing Dateall Seller Advance Payments, Seller Customer Deposits and Seller Customer Prepayments;
(mix) the Leased Real Property;
(x) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff Books and rights of recoupment of every kind and nature Records;
(including rights to insurance proceedsxi) which relate to the Business, except for any of the foregoing to the extent they relate transferable, all Licenses from any Governmental Authority relating to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part operation of the Business;
(oxii) to the extent transferable, all licenses, consents, permits insurance policies held by Seller or that may have been issued to Seller and authorisations necessary for the Company to carry on in effect at any time during Seller’s operation of the Business, including without limitation, on the Key PermitsLeased Real Property, and all material product (including software) registrations, accreditations and the right to any proceeds thereunder but excluding any insurance policies with respect to any Benefit Plan other certifications required for the Businessthan Assumed Benefit Plans;
(pxiii) all insurancerights in and sponsorship of the Assumed Benefit Plans and any associated funding media, warranty assets, reserves and condemnation net proceeds received after credits including without limitation cash equal to the Closing Date amounts standing to the credit of participants in the Section 125 “Flex” (Cafeteria Plan) for Dependent Care & Medical (formally known as Crush Creative, Inc. Flexible Benefits Plan, the benefit of the insurance policies and service agreements in relation to the Assumed Benefit Plans and all books and records in connection with respect to damagethe Assumed Benefit Plans;
(xiv) all guarantees, non-conformance warranties, indemnities and similar rights in favor of Seller or loss to any of the Purchased Assets;
(qxv) all planstelephone and facsimile numbers, instructional post office boxes, and promotional material, sales publications, advertising materials, terms bank accounts and conditions of sale cash in amounts equal to (i) Seller Customer Deposits or Seller Customer Prepayments at the Closing and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof)ii) Minimum Cash;
(rxvi) except all domain names and Internet addresses, and content with respect to the extent they relate to Excluded Assets or Excluded LiabilitiesInternet websites, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals content in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirementsits electronic form;
(sxvii) the value added Tax records all rights, claims, causes of the Business covering the three (3) financial years preceding the Accounts Dateaction against any Person other than claims against any person related to an Excluded Liability; and
(txviii) all other assets of any kind tangible or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assetsintangible property, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the assets of Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to ; and
(xix) all goodwill of the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Subject to the terms and subject to the conditions set out in of this Agreement, at the Closing, the Company agrees Seller shall cause each Subsidiary Transferor to, and MSK shall, sell, assign, transfer, convey and deliver to sell the Buyer, and the Buyer agrees to shall purchase all assetsfrom such Subsidiary Transferor, propertiesfree and clear of any Liens other than Permitted Liens, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of such Subsidiary Transferor’s right, title and interest in and to the following assets, but excluding including all Excluded Assets assets reflected on the most recent Business Balance Sheet and Excluded Liabilitiesnot subsequently disposed or acquired in the ordinary course of business (consistent with past practice) without breach of any provisions of this Agreement to the extent any such assets are held by such Subsidiary Transferor (all such assets of all Subsidiary Transferors, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):
(a) all inventory (including those finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories) included in Closing Working Capital, including the Business inventory listed in Section 2.1(a) of the Seller Disclosure Letter as a going concernof the date set forth therein, subject to changes in the ordinary course of business (consistent with past practice) (“Inventory”);
(b) the goodwill, if any, relating (i) all Contracts exclusively related to the Business;
Business (cother than IP Licenses and Real Property Leases under clause (g) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(dbelow), including the Real Property Leases;
(ethose Contracts listed in Section 2.1(b)(i) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which of the Seller is a party if any such Contract relates to Disclosure Letter, and (ii) the Business, including, without limitation each Material Agreement IP Licenses listed in Section 2.1(b)(ii) of the Seller Disclosure Letter (collectively, the “Assigned Contracts”);
(hc) subject to all Current Assets included in Closing Working Capital;
(d) (x) the Patents and Software that are, in each case, owned by MSK and listed in Section 11.6, all rights to the employment 2.1(d) of the EmployeesSeller Disclosure Letter, and (y) all other Intellectual Property (other than Patents, Software, Trademarks or Registered Copyrights) that is owned by MSK or any other Subsidiary Transferor and used exclusively in the Business ((x) and (y) collectively, together with the right to ▇▇▇ and recover damages, assert , settle and/or release any claims or demands and obtain all other remedies and relief at law or in equity for any past, present or future infringement, misappropriation, or other violation thereof, the “Purchased Intellectual Property”);
(e) all furniture, fixtures, equipment, machinery, tools, office equipment, supplies, computers, telephones and other tangible personal property used exclusively in connection with the Business listed in Section 2.1(e) of the Seller Disclosure Letter, including those individuals set forth located at Fab 4, and all of the foregoing tangible personal property located in Appendix 3.1.1(hthe R Building listed in Section 2.1(e) attached heretoof the Seller Disclosure Letter;
(f) to the extent transferable and required to operate the Business, all Business Permits listed in Section 2.1(f) of the Seller Disclosure Letter;
(g) the Real Property (including all related improvements and all easements and rights-of-way appurtenant thereto) and Real Property Leases listed in Section 2.1(g) of the Seller Disclosure Letter;
(h) copies of all financial, accounting and operating data and records, including books, records, notes, emails and other electronic records, sales and sales promotional data, advertising materials, credit information, cost and pricing information, customer and supplier lists, payroll and personnel records and other similar property, rights and information (collectively, “Books and Records”) to the extent exclusively related to the Business;
(i) all records goodwill associated with the Business or the Purchased Assets and the going concern value of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;Business; and
(j) all lists assets, properties and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents Rights specifically set forth in Section 2.1(j) of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded LiabilitiesSeller Disclosure Letter.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Business Transfer Agreement (MAGNACHIP SEMICONDUCTOR Corp)
Purchased Assets. 3.1.1 Upon the terms and subject Subject to the conditions set out in provisions of this AgreementAgreement and specifically Section 1.2 below, at the Closing, the Company agrees Seller shall sell, convey, assign, transfer and deliver to sell Buyer, and the Buyer agrees shall purchase and acquire from Seller, free and clear of any Liens (other than Permitted Liens), all of Seller’s right, title and interest in and to purchase all assets, of Seller’s properties, assets and rights, titles tangible and interests intangible, of every nature, kind or nature ownedand description, leasedwherever located, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) that exist as of the Closing Date, and in any case, belonging to or intended to be used in other than the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):), including, without limitation, the following:
(a) the Business as a going concernall inventory (including without limitation finished goods, work in process and raw materials) and prepaid expenses of Seller;
(b) all furniture, fixtures, equipment, computers, machinery, motor vehicles and other tangible personal property used or held for use by Seller, including, without limitation, any and all of the goodwill, if any, relating to the Businessforegoing listed in Schedule 1.1(b);
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretoSeller Intellectual Property;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d)goodwill relating to the Business as a going concern and all other intangible assets, including the Real Property Leasesincluding, without limitation, all telephone and facsimile numbers of Seller;
(e) all Inventorydata, work files, books and records (including employment, billing, financial and accounting records), business plans, strategies, marketing and other documents and information maintained by Seller (whether in progress print, electronic or other media and raw materialincluding, without limitation, all customer and supplier and prospective customer and supplier lists and files, and referral sources), and all computer software and databases used by Seller; provided, however, Seller shall retain copies of, and access to, all books and records (including employment, billing, financial and accounting records) reasonably needed by Seller following the Closing;
(f) all Fixed Assetsof the rights of Seller under the contracts (including any customer deposits and pre-paid revenue thereunder, including such assets scheduled all of which is set forth on Appendix 3.1.1(fSchedule 1.1(f), but specifically excluding any of Parent’s pre-paid revenue and customer deposits), commitments, leases, licenses and agreements listed on Schedule 1.1(f) (collectively, the “Acquired Agreements”);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, of Seller’s Permits (including, without limitation limitation, those listed in Section 2.16 of the Seller Disclosure Schedule), and all pending applications therefor and pending renewals thereof, in each Material Agreement (collectively, case to the “Assigned Contracts”)extent transferable to Buyer;
(h) subject to Section 11.6all Actions of any kind of Seller (including, all but not limited to, rights to insurance proceeds related to the employment Purchased Assets and rights under and pursuant to all warranties, representations and guarantees made by customers of Seller or suppliers of products, services, materials or equipment to Seller, in each case, related to the Employees, including those individuals set forth in Appendix 3.1.1(h) attached heretoPurchased Assets);
(i) to the extent legally assignable, all records rights of Taxes Seller pursuant to any confidentiality and/or restrictive covenant agreements with current and employer’s fees relating to all the Employees duly completed former employees and up to date, covering the three (3) financial years preceding the Accounts Date;consultants; and
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list copies of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate personnel records relating to the Business, except for any of the foregoing Continuing Employees that Seller is required by law to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilitiesits possession.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon the terms On and subject to the terms and conditions set out forth in this Agreement, at the ClosingBuyer will purchase from Seller, the Company agrees and Seller will sell, transfer, assign, convey and deliver to sell and the Buyer agrees to purchase all assetsBuyer, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) effective as of 12:01 a.m., central time, on the Closing Date, free and in clear of all liens, encumbrances, security interests, purchase rights, pledges, charges, mortgages, claims or any caseother limitations or restrictions whatsoever, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of Seller's right, title and interest in and to the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with collectively. the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “"Purchased Assets”"):
(a) the Business as a going concerntangible properties and assets of Seller of every kind used primarily in the operation of the SMATV Systems (including the interconnection of the buildings within the Complexes) including but not limited to cables, plant, fiber, wires, conduits, junction boxes, passive and active electronics, vaults and pedestals (including all related spare parts, accessories and supplies) and other similar equipment, the material items of which are listed on Schedule 2.1
(a) to this Agreement (the "Equipment");
(b) the goodwillagreements and contracts, if any, relating set forth on Schedule 2.1
(b) to the Businessthis Agreement ("Contracts");
(c) all Accounts Receivablesubscriber accounts receivable owed to Seller as payment for services rendered by Seller prior to 11:59 P.M., notes receivable and other amounts receivable from third partiescentral time, including customers and employeeson the day immediately prior to the Closing Date (the "Adjustment Time") in connection with the operation of the SMATV Systems, and all correspondence with respect thereto;as reflected on the billing records of Seller; and
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists books and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights pertaining to insurance proceeds) which relate to the BusinessEquipment, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licensesContracts, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material customers and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals prospects used in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained connection with the Seller or SMATV Systems (the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent"Records").
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Subject to the terms and subject to conditions of this Agreement, and based upon the conditions set out representations and warranties contained in this Agreement, at the Closing, the Company agrees to Seller shall sell and convey to Purchaser, free and clear of all Encumbrances (other than Permitted Encumbrances), and Purchaser shall purchase from Seller, all of Seller's right, title and interest in and to the Buyer agrees to purchase all assets, properties, rights, titles properties and interests rights of every kind and description, real, personal and mixed, tangible and intangible, wherever situated which are used or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used useful in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all conduct of Seller's business (the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(c) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d"PURCHASED ASSETS"), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectivelylimitation, the “Assigned Contracts”)following:
2.1.1 all machinery, equipment, leasehold improvements, trucks, automobiles, supplies, materials, office furniture and office equipment, computing and telecommunications equipment and other items of personal property that are owned or leased by Seller and used in connection with Seller's business, wherever located;
(h) subject to Section 11.6, 2.1.2 all rights to the employment of the Employeesleases and agreements identified in SCHEDULE 2.1.2 hereto;
2.1.3 all customer lists, sales data, catalogs, brochures, suppliers, names, mailing lists, art work, photographs and advertising material that relate to Seller's business, whether in electronic form or otherwise;
2.1.4 all governmental permits, licenses, registrations, orders and approvals relating to Seller's business, including those individuals set forth listed in Appendix 3.1.1(h) attached SCHEDULE 2.1.4 hereto, to the extent such permits, licenses, registrations, orders and approvals are transferable to Purchaser;
(i) 2.1.5 all trade secrets, secret processes and procedures, engineering, production, assembly, design, installation, other technical drawings and specifications, working notes and memos, market studies, consultants' reports, technical and laboratory data, competitive samples, engineering prototypes, and all similar property of any nature, tangible or intangible, of Seller relating to its business;
2.1.6 all patents, trademarks, trademark registrations, trade names, service marks, copyrights and copyright registrations including, without limitation, those described in SCHEDULE 2.1.6;
2.1.7 all other records of Taxes Seller, including property records and employer’s fees relating to all the copies of personnel records of Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Datewho become employees of Purchaser;
(j) 2.1.8 all lists right, title and records pertaining interest of Seller in and to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years)goodwill incident to its business;
(k) a list of potential customers of the Business to which outstanding quotations have been given as at 2.1.9 all Closing Inventory;
2.1.10 all Accounts Receivable existing on the Closing Date;
(l) a list of unfulfilled orders of 2.1.11 all deposits and prepaid expenses, claims for refunds and rights to offset of, or for the Business as at benefit of, Seller's business on the Closing Date;
2.1.12 any insurance policies maintained by Seller with respect to its business;
2.1.13 All accounts receivable from Affiliates of Seller existing on the Closing Date;
2.1.14 cash and cash equivalents on hand or in bank accounts and all short-term investments;
2.1.15 assets constituting any pension or other funds for the benefit of Employees;
2.1.16 all computer applications software, owned or licensed, whether for general business usage (me.g., accounting, word processing, graphics, spreadsheet analysis, etc.) or specific, unique-to-the-business usage (e.g., order processing, manufacturing, process control, shipping, etc.) and all claimscomputer operating, depositssecurity or programming software, prepayments, Prepaid Expenses, warranties, guarantees, refunds, owned or licensed by Seller; and
2.1.17 all other assets (including all causes of action, rights of recoveryaction, contract rights of setoff and rights of recoupment of every kind warranty and nature (including rights to insurance proceedsproduct liability claims against third parties, all telephone numbers, telecopier numbers, websites, domain EXECUTION COPY names, and email addresses) which relate relating to the BusinessPurchased Assets or Seller's business, except for regardless of whether any value is ascribed thereto in Seller's financial statements. Notwithstanding the foregoing provisions of this Section 2.1, the transfer of the foregoing Purchased Assets pursuant to this Agreement shall not include the extent they relate to Excluded Assets assumption of any liability or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss obligation related to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets unless such liability or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and obligation is expressly included in the definition of Purchased AssetsAssumed Liabilities.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Advanced Communications Technologies Inc)
Purchased Assets. 3.1.1 Upon the terms The Companies have good, valid and subject marketable title to the conditions set out in this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company following assets (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):
(ai) all of the Business as a going concerntangible assets and all of the Companies’ rights in and to the vehicle and personal property leases listed on Schedule 2(q)(i) hereto;
(bii) all customer and prospective customer lists used in connection with the goodwill, if any, relating to operation of the Business;
(ciii) all Accounts Receivable, notes receivable and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretocustomer goodwill generated in the operation of the Business;
(div) all interests inventories of the Companies in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to connection with the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”);
(h) subject to Section 11.6limitation, all rights to the employment of the Employeespurchased parts, including those individuals materials and supplies, as set forth in Appendix 3.1.1(hon Schedule 2(q)(iv) attached hereto;
(iv) all records accounts receivable of Taxes and employer’s fees relating to the Companies in connection with the Business, including, without limitation, all the Employees duly completed and up to date, covering the three (3accounts receivable set forth on Schedule 2(i) financial years preceding the Accounts Datehereto;
(jvi) all lists personal property, machinery, furniture, fixtures, leasehold improvements, and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as equipment situated at the Closing Date;
(l) a list of unfulfilled orders of Companies’ retail dry cleaning and laundry stores and processing facilities, and used in connection with the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part operation of the Business;
(ovii) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations real property leases and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereofcontracts listed on Schedule 4(a);
(rviii) except all prepaid items or accounts of the Companies relating solely to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings Business and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirementsdescribed on Schedule 2(q)(vii) hereto;
(six) the value added Tax records all of the deposits may by any Company under any lease or other contract relating to the Business covering listed on Schedule 2(q)(x) hereto;
(x) all computer equipment located at any of the three premises located at the locations covered by the leases listed on Schedule 4(a);
(3xi) financial years preceding all rights in the Accounts DateIntellectual Property described in Section 9(f) below;
(xii) cash of not less than $15,000;
(xiii) all physical plans and designs of the Business’ labs and stores (including, without limitation, blueprints and layouts); and
(txiv) all other assets of any kind or nature of the Company, as applicable, which relate books and records relating solely to the Business other than the Excluded Assets or Excluded Liabilities(if any).
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Assignment and Assumption Agreement (Us Dry Cleaning Corp)
Purchased Assets. 3.1.1 Upon Subject to the terms and subject to the conditions set out in of this Agreement, the Sellers hereby sell, transfer, convey, assign and deliver to the Buyer at the ClosingClosing (as defined in SECTION 1.9), the Company agrees to sell and the Buyer agrees to purchase all hereby purchases and receives from the Sellers, the Finance Contracts listed on SCHEDULE 1.1(A), the Inventory (as hereafter defined), the tangible assets, propertiesparts, rights, titles properties and interests improvements of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Businessdescription, whether tangiblereal, personal or mixed, tangible or intangible, real or personal and wherever located, including without limitation all of the following fixed assets, but excluding all Excluded Assets and Excluded Liabilities, wherever located (except those assets of the Sellers which are specifically excluded as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth provided in Section 3.1.2SECTION 1.2 hereof), the “business as a going concern and all goodwill associated therewith as the same shall exist on the Closing Date (as defined in SECTION 1.9), whether or not appearing on the Current Balance Sheet (as defined in SECTION 2.5) (collectively, the "PURCHASED ASSETS"). Without limiting the generality of the foregoing, the Purchased Assets”):Assets shall include the following:
(a) all Finance Contracts of the Business Sellers as listed in SCHEDULE 1.1(A), including receivables arising as a going concernresult of contracts in transit and installment sales contracts;
(b) other receivables of the goodwillSellers, if anyincluding trade account receivables, relating notes receivables (other than Finance Contracts), insurance proceeds, service contract providers, vendors or suppliers of the Sellers, rights to receive payment (including any related guaranties, security deposits or other collateral therefor) under credit agreements, finance leases and other such agreements (collectively, the Business"RECEIVABLES");
(c) all Accounts Receivable, notes receivable and other amounts receivable from third partiesinventories of the Sellers, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6without limitation, all rights inventories of parts and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Businessaccessories, including, without limitation each Material Agreement used vehicles and contracts in transit (collectively, the “Assigned Contracts”);
(hnet of drafts in transit) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth as shown in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.SCHEDULE 1.1
Appears in 1 contract
Sources: Asset Purchase Agreement (Smart Choice Automotive Group Inc)
Purchased Assets. 3.1.1 Upon Subject to the terms and subject to the conditions set out in of this Agreement, the Sellers hereby sell, transfer, convey, assign and deliver to the Buyer at the ClosingClosing (as defined in SECTION 1.10), the Company agrees to sell and the Buyer agrees to purchase all hereby purchases and receives from the Sellers, the Finance Contracts listed on SCHEDULE 1.1(A), the Inventory, the tangible assets, propertiesparts, rights, titles and interests properties (not including buildings) of every kind and description, whether real, personal or nature ownedmixed, leasedtangible or intangible, licensed or otherwise held by all of the Company fixed assets, wherever located (including indirect except those assets of the Sellers which are specifically excluded as provided in SECTION 1.2 hereof), the business as a going concern and other forms of beneficial ownership) all goodwill associated therewith as of the same shall exist on the Closing Date, and in any casewhether or not appearing on the Current Balance Sheet (collectively, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all "PURCHASED ASSETS"). Without limiting the generality of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2foregoing, the “Purchased Assets”):Assets shall include the following:
(a) all Finance Contracts of the Business Sellers as listed in SCHEDULE 1.1(A), including receivables arising as a going concernresult of contracts in transit and installment sales contracts;
(b) other receivables of the goodwillSellers, if anyincluding trade account receivables, relating notes receivables (other than Finance Contracts), insurance proceeds, service contract providers, vendors or suppliers of the Sellers, rights to receive payment (including any related guaranties, security deposits or other collateral therefor) under credit agreements, finance leases and other such agreements (collectively, the Business"RECEIVABLES");
(c) all Accounts Receivable, notes receivable and other amounts receivable from third partiesinventories of the Sellers, including customers and employees, and all correspondence with respect thereto;
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6without limitation, all rights inventories of parts and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Businessaccessories, including, without limitation each Material Agreement used vehicles and contracts in transit (collectively, the “Assigned Contracts”);
(hnet of drafts in transit) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth as shown in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.SCHEDULE 1.1
Appears in 1 contract
Sources: Asset Purchase Agreement (Smart Choice Automotive Group Inc)
Purchased Assets. 3.1.1 Upon Subject to and upon the terms and subject conditions of this Agreement and excluding the assets retained by the Seller as set forth in Section 1.1(b) herein (which retained assets include, without limitation, all accounts receivable for services rendered by Seller to its customers prior to the conditions set out Effective Time), as of the Effective Time (as defined in this Agreement, at the ClosingSection 1.5 below), the Company agrees Seller shall sell, transfer, convey, assign and deliver, to sell the Buyer, and the Buyer agrees to shall purchase from the Seller, free and clear of all assetsliens and encumbrances (except for Permitted Liens as defined in Section 2.8), all of the properties, rights, titles assets and interests business as a going concern, of every kind and nature, real, personal or nature mixed, tangible or intangible, wherever located, which are owned, leased, licensed or otherwise held used by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used Seller in the Businessconduct of its business at the Purchased Offices (as defined below) and the On-Site Business (as defined below) and which exist at the Effective Time (collectively, whether tangiblethe "Purchased Assets"), intangibleincluding, real or personal and wherever locatedwithout limitation, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”)::
(a) the Business as a going concern;
(b) the goodwill, if any, relating to the Business;
(ci) all Accounts Receivable, notes receivable office supplies and other amounts receivable from third parties, including customers and employees, and all correspondence with respect thereto;
similar materials (d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leases;
(e) all Inventory, work in progress and raw material;
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f"Supplies");
(gii) except for all contracts, agreements, personal property leases, arrangements and/or commitments of any Excluded Assets kind, whether oral or Excluded Liabilities and subject to Sections 3.1.5written, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates relating solely to the Purchased Assets, and limited to the geographic area serviced by the Purchased Offices and the On-Site Business, including, without limitation each Material Agreement as set forth on Schedule 2.12 attached hereto (collectively, the "Contracts");
(iii) all Real Property Leases (as defined in Section 2.10);
(iv) the motor vehicles described on Schedule 1.1(a)(iv) (the “Assigned ContractsMotor Vehicles”);
(hv) subject all customer lists, files, records and documents (including credit information) relating solely to Section 11.6, all rights customers and vendors of the Purchased Assets and limited to the employment of geographic area serviced by the EmployeesPurchased Offices the On-Site Business and all other business, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes financial and employer’s fees employee books, records, files, documents, reports and correspondence relating to all the Employees duly completed Purchased Assets, but excluding records relating to accounts receivable, except to the extent required by Sections 2.22 and up to date7.2(f) herein (collectively, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years"Records");
(kvi) a list of potential customers all rights of the Business to which outstanding quotations have been given as at Seller, if any, under express or implied warranties from the Closing Datesuppliers of the Seller in connection with the Purchased Assets;
(lvii) a list of unfulfilled orders all furnishings, furniture, fixtures, tools, machinery, equipment and leasehold improvements owned by the Seller and related to the Purchased Assets, whether or not reflected as capital assets in the accounting records of the Business Seller (collectively, the "Fixed Assets"), as at set forth on Schedule 2.8; and
(viii) all computers, computer programs, computer databases, hardware and software owned or licensed by the Closing DateSeller and used in connection with the Purchased Assets, but not to include any proprietary software of Seller;
(mix) all claimsthe right to use any forms, depositsprocesses and solutions developed by and for Stratus and employed by Stratus, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate prior to the Businessdate of Closing, except for any of in operating the foregoing to Purchased Offices and the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the On-Site Business;
(ox) all municipal, state and federal franchises, licenses, consents, authorizations and permits and authorisations of the Seller which are necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of operate or loss are related to the Purchased Assets;
(qxi) all plansprepaid charges, instructional deposits, sums and promotional material, sales publications, advertising materials, terms and conditions fees of sale and other technical material and sales matter which relate Seller relating to the BusinessPurchased Assets, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereofas set forth on Schedule 1.1(a)(xi);
(rxii) except all claims and rights of Seller related to or arising from the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts DatePurchased Assets; and
(txiii) all other assets of any kind or nature of the Company, as applicable, which relate to goodwill of the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell Purchased Offices and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased AssetsOn-Site Business.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Stratus Services Group Inc)
Purchased Assets. 3.1.1 Upon On the terms and subject to the conditions set out in of this Agreement, at on the ClosingClosing Date (as defined in Section 7.1), the Company agrees Purchaser shall purchase from Sellers, and Sellers shall sell, convey, assign, transfer and deliver to sell and the Buyer agrees to purchase Purchaser, all properties, assets, properties, rights, titles rights and interests of every kind and nature, whether real or nature ownedpersonal, leasedtangible or intangible, licensed or otherwise held and wherever located and by the Company (including indirect and other forms whomever possessed, of beneficial ownership) Sellers as of the Closing Date, and in any case, belonging Effective Date related to or intended to be used in in, or otherwise associated with, the Business, whether tangibleincluding, intangiblewithout limitation, real or personal and wherever located, including without limitation all of the following assets, assets (but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth defined in Section 3.1.2, the “Purchased Assets”1.2 hereof):
(a) cash, cash equivalents and marketable securities having the Business as a going concernaggregate value equal to the amounts provided for on Schedule 1.1
(a) (the "Required Cash Amount");
(b) all accounts and notes receivable (whether current or noncurrent), a list, description and aging of which as of the goodwill, if any, relating to the Businessdate hereof is set forth on Schedule 1.1(b);
(c) all Accounts Receivableprepayments, notes receivable prepaid expenses (including, without limitation, prepaid insurance premiums, except for professional liability, fiduciary, fidelity crime and other amounts receivable from third partieserrors and omissions coverage policies to be retained by Sellers and the Major Shareholder (the "Retained Insurance")), including customers deferred charges, advance payments and employees, and all correspondence with respect theretosecurity deposits as of the Closing Date;
(d) all interests supplies located at each Seller's facilities, in leased transit to or subleased real estate listed on Appendix 3.1.1(dfrom such Seller's facilities or which otherwise relate to the Business (the "Inventory"), including the Real Property Leases;
(e) all Inventory, work interests in progress and raw material;
real estate (f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f);
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5, 3.6 and 11.6, all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement limitation, land, buildings, improvements and that certain security deposit of one hundred thousand dollars (collectively$100,000) pursuant to the Lease Agreement), whether owned in fee, leased or otherwise, including but not limited to, the “Assigned Contracts”);
(h) subject to Section 11.6, all rights to the employment of the Employees, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to date, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment of every kind and nature (including rights to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry interests listed on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.Schedule 1.1
Appears in 1 contract
Sources: Asset Purchase Agreement (Clark/Bardes Holdings Inc)
Purchased Assets. 3.1.1 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Company agrees to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing Date, and in any case, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assets, but excluding all Excluded Assets and Excluded Liabilities, as further detailed below and on Appendix 3.1.1 (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2, the “Purchased Assets”):
(a) the Business as a going concerncash and cash equivalents;
(b) all accounts or notes receivable held by Seller, and any security, claim, remedy or other right related to any of the goodwill, if any, relating to the Businessforegoing ("Accounts Receivable");
(c) all Accounts Receivableinventory, notes receivable finished goods, raw materials, work in progress, packaging, supplies, parts and other amounts receivable from third parties, including customers and employees, and all correspondence with respect theretoinventories ("Inventory");
(d) all interests in leased or subleased real estate listed on Appendix 3.1.1(d)Contracts, including intellectual property licenses, set forth on Section 3.08 of the Real Property LeasesDisclosure Schedules (the "Assigned Contracts");
(e) all Inventory, work in progress and raw materialIntellectual Property Assets;
(f) all Fixed Assetsfurniture, including such assets scheduled on Appendix 3.1.1(ffixtures, equipment, machinery, tools, vehicles, office equipment, supplies, computers, telephones and other tangible personal property (the "Tangible Personal Property");
(g) except for all rights to any Excluded Actions of any nature available to or being pursued by Seller to the extent related to the Purchased Assets or Excluded Liabilities and subject to Sections 3.1.5the Assumed Liabilities, 3.6 and 11.6, all rights and obligations whether arising after the Closing existing under all Contracts to which the Company is a party by way of counterclaim or to which the Seller is a party if any such Contract relates to the Business, including, without limitation each Material Agreement (collectively, the “Assigned Contracts”)otherwise;
(h) subject to Section 11.6all prepaid expenses, all rights to the employment of the Employeescredits, including those individuals set forth in Appendix 3.1.1(h) attached hereto;
(i) all records of Taxes and employer’s fees relating to all the Employees duly completed and up to dateadvance payments, covering the three (3) financial years preceding the Accounts Date;
(j) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents of the Business (including without limitation a list of all the customers of the Business during the last two years);
(k) a list of potential customers of the Business to which outstanding quotations have been given as at the Closing Date;
(l) a list of unfulfilled orders of the Business as at the Closing Date;
(m) all claims, deposits, prepayments, Prepaid Expenses, warranties, guaranteessecurity, refunds, causes of action, rights of recovery, rights of setoff and set-off, rights of recoupment of every kind recoupment, deposits, charges, sums and nature fees (including rights to insurance proceeds) which relate any such item relating to the Businesspayment of Taxes);
(i) all of Seller's rights under warranties, except for any of the foregoing indemnities and all similar rights against third parties to the extent they relate related to Excluded Assets or Excluded Liabilities;
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licenses, consents, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the any Purchased Assets;
(qj) all plansinsurance benefits, instructional including rights and promotional materialproceeds, arising from or relating to the Purchased Assets or the Assumed Liabilities;
(k) originals, or where not available, copies, of all books and records, including, but not limited to, books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority), sales publicationsmaterial and records (including pricing history, advertising materialstotal sales, terms and conditions of sale sale, sales and other technical pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and sales matter which relate research and intellectual property files relating to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Intellectual Property Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
intellectual property licenses (s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date"Books and Records"); and
(tl) all other assets of any kind or nature goodwill and the going concern value of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition business of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract
Purchased Assets. 3.1.1 Upon Except for the terms and subject to the conditions set out in this AgreementExcluded Assets, at the Closing, the Company agrees Seller shall sell to sell and the Buyer agrees to purchase all assets, properties, rights, titles and interests of every kind or nature owned, leased, licensed or otherwise held by the Company (including indirect and other forms of beneficial ownership) as of the Closing DateBuyer, and in any caseBuyer shall purchase from Seller, belonging to or intended to be used in the Business, whether tangible, intangible, real or personal and wherever located, including without limitation all of the following assetsSeller’s right, but excluding all Excluded Assets title and Excluded Liabilities, as further detailed below interest in and on Appendix 3.1.1 to Seller’s assets (together with the assets, properties, rights, titles and interests set forth in Section 3.1.2collectively, the “Purchased Assets”):), including, but not limited to, the following, free and clear of all Liens except Permitted Liens, but excluding the Excluded Assets:
(a) Cash in an amount equal to $300,000 plus the Business aggregate amount to be paid by RL to Seller for certain items of personal property as a going concernset forth on Schedule 1.02 (the “Minimum Cash Amount”) and accounts receivable including without limitation, the designated bank account(s) set forth on Schedule 2.24(i);
(b) the goodwillall inventory, if anyparts, relating to the Businesscastings, moldings, fixtures and tooling wherever located;
(c) all Accounts Receivableto the extent assignable to Buyer, notes receivable and other amounts receivable from third parties, including customers and employees, any and all correspondence with respect theretopermits, consents and licenses held by Seller;
(d) all interests in leased furniture, fixtures, machinery, equipment, vehicles, tools and implements of any kind, character or subleased real estate listed on Appendix 3.1.1(d), including the Real Property Leasesnature;
(e) all Inventorythe Assumed Contracts, work in progress and raw materialincluding those listed on Schedule 1.01(e);
(f) all Fixed Assets, including such assets scheduled on Appendix 3.1.1(f)of Seller’s interests in all improvements to the Real Property;
(g) except for any Excluded Assets or Excluded Liabilities and subject to Sections 3.1.5all Intellectual Property Rights, 3.6 and 11.6, including all rights and obligations arising after the Closing existing under all Contracts to which the Company is a party or to which the Seller is a party if any such Contract relates to the Businesscorporate and trade names of Seller and those copyrights, includingpatents, without limitation each Material Agreement (collectivelytrademarks, the “Assigned Contracts”trade names and pending applications therefore listed on Schedule 1.01(g);
(h) subject to Section 11.6, all rights prepaid expenses of Seller relating to the employment of Purchased Assets or the EmployeesBusiness for periods following the Closing, including those individuals set forth amounts paid in Appendix 3.1.1(h) attached heretoadvance on account of rent, property taxes, utility charges, fuel, fees and deposits;
(i) originals or copies (at the option of Buyer) of all books, records, manuals, files, customer and supplier lists and records, accounts and billing records, plans, blueprints, specifications, drawings, surveys, personnel records (to the extent they may lawfully be provided to Buyer) and operating data of Seller whether in electronic format or otherwise, including without limitation, all historic books and records relating to the sale of firearms, including all records required to be kept pursuant to parts 447, 478, and, 479 of Taxes C.F.R. title 27 (such books and employer’s fees records relating to all the Employees duly completed sale of firearms, the “Historic Firearms Books and up to date, covering the three (3) financial years preceding the Accounts DateRecords”);
(j) all lists rights of Seller in and records pertaining to customer accounts (whether past or current)all databases, supplierssoftware, distributorssoftware programs, personnel object codes, source codes, systems documentation and agents of the Business (including without limitation a list of all the customers of the Business during the last two years)user manuals;
(k) a list all claims, causes of potential customers action and rights of the Business to which outstanding quotations have been given as at recovery of Seller, whether asserted or commenced on or before the Closing Date;
(l) a list of unfulfilled orders the right to ▇▇▇▇ and receive payments for products shipped or delivered by Seller but unbilled or unpaid as of the Business as at the Closing DateClosing;
(m) all claimstelephone numbers (e.g., depositstoll free numbers), prepaymentsfacsimile numbers, Prepaid ExpensesInternet addresses, warranties, guarantees, refunds, causes of action, rights of recovery, rights of setoff websites and rights of recoupment of every kind and nature (including rights similar numbers or addresses assigned to insurance proceeds) which relate to the Business, except for any of the foregoing to the extent they relate to Excluded Assets or Excluded Liabilities;used by Seller; and
(n) all Intellectual Property Rights owned or otherwise held by the Company as part of the Business;
(o) all licensesSeller’s catalogs, consentssamples, permits and authorisations necessary for the Company to carry on the Business, including the Key Permits, and all material product (including software) registrations, accreditations and other certifications required for the Business;
(p) all insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Purchased Assets;
(q) all plans, instructional marketing and promotional material, sales publications, advertising materials, terms and conditions of sale and other technical material and sales matter which relate to the Business, together with any plates, blocks, negatives and similar material relating to them (without retaining any copies thereof);
(r) except to the extent they relate to Excluded Assets or Excluded Liabilities, all computer programs, copies of books (other than minute books relating to board meetings, shareholders’ meetings and statutory books), copies of books of account, copies of records (including tax records, payroll records and income records), copies of ledgers, originals of files, documents, correspondence, lists, studies and reports and other printed or written materials which relate to the Business, to the extent such information and documentation exists; provided that, the Company shall retain the originals in cases where the Buyer obtains copies and the Company shall retain copies in cases where the Buyer obtains the originals for the purpose of safeguarding legal auditing requirements;
(s) the value added Tax records of the Business covering the three (3) financial years preceding the Accounts Date; and
(t) all other assets of any kind or nature of the Company, as applicable, which relate to the Business other than the Excluded Assets or Excluded Liabilities.
3.1.2 Upon the terms and subject to the conditions set out in this Agreement, at the Closing, the Seller agrees to sell and the Buyer agrees to purchase the Danish Assets, as exhaustively listed in Appendix A and included in the definition of Purchased Assets.
3.1.3 The Purchased Assets shall be transferred to the Buyer on the Closing Date free and clear from any Encumbrances.
3.1.4 If, following the Closing Date, any amounts due to the Buyer in relation to the Transferred Business are mistakenly paid directly to the Seller or the Company, the Company shall refund said amount forthwith to the Buyer as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. Furthermore, if, following the date hereof, any amounts due to the Seller or the Company are mistakenly paid directly to the Buyer, the Buyer shall refund said amount forthwith to the Seller or the Company as soon as reasonably possible but in all circumstances within five (5) Business Days of receipt. In the event that (a) the Parent or the Buyer by mistake pays any amount which should have correctly been paid by the Seller or the Company, the Parent or the Buyer, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment or (b) the Seller or the Company by mistake pays any amount which should have correctly been paid by the Parent or the Buyer, the Seller or the Company, as applicable, shall be reimbursed accordingly but in all circumstances within five (5) Business Days of such payment.
3.1.5 Should any such assets, rights or properties be discovered related to the Business that were previously omitted from the Purchased Assets, these assets, rights and properties shall forthwith be promptly transferred by the Seller or the Company, as the case may be, to the Buyer without any additional compensation to the Company or the Seller. Similarly, if any assets, rights or properties have been transferred to the Buyer which should have remained with the Seller or the Company, then, to the extent not related to the Business, these assets, rights and properties shall be promptly returned by the Buyer to the Seller or the Company, as the case may be, without any penalty on the Buyer or the Parent.
3.1.6 Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract if an attempted assignment thereof, without consent of a third party thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer or the Company or the Seller, as the case may be, thereunder. The Company or the Seller, as the case may be, and the Buyer will use their reasonable best endeavours (but without the requirement of any payment of money by the Company, the Seller or the Buyer) to obtain the consent of the other parties to any such Contract for the assignment thereof to the Buyer as the Buyer may request. With the exception of employment Contracts with Employees which are subject to Section 11.6, unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the Company or the Seller, as applicable, thereunder so that the Buyer would not in fact receive all rights under such Contract, the Company or the Seller, as applicable, and the Buyer will cooperate in an arrangement under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including sub-licensing, or subleasing to the Buyer, or under which the Company or the Seller, as applicable, would enforce, at the Buyer’s expense, for the benefit of the Buyer, with the Buyer assuming at the Buyer’s expense the Company’s or the Seller’s obligations, as applicable, any and all rights of the Company or the Seller, as applicable, against a third party thereto. With the exception of employment Contracts with Employees which are subject to Section 11.6, the Company or the Seller, as the case may be, will promptly pay to the Buyer when received all monies received by the Company or the Seller under any such Contract, and the Buyer shall pay, defend, discharge and perform all Liabilities under such Contracts.
Appears in 1 contract