Purchased Assets. Upon the terms and subject to the conditions of this Agreement, on the Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date), the Company shall, and shall cause its Affiliates, to sell, transfer, assign, convey and deliver to Purchaser Sub, and Purchaser Sub shall purchase from the Company and, as applicable, its Affiliates, free and clear of all Liens (except for Permitted Liens) all right, title and interest of the Company and its Affiliates, in, to and under all of the assets, properties and rights owned, held or used by the Company and its Affiliates, exclusively relating to or exclusively used in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating to any Acquired Store or Distribution Center (collectively, the “Purchased Assets”): (a) all Inventory and supplies of the Company and its Affiliates and the fixed assets and tangible property physically located at the Acquired Stores and the Distribution Centers; (b) to the extent transferable, the Permits held by the Company and its Affiliates; (c) the Company Owned Real Property together with all buildings, structures, fixtures and improvements located thereon or attached thereto and any easements, rights-of-way, and other appurtenants (and all title documents, surveys, related construction plans and documents and related real estate files with respect to the Company Owned Real Property); (d) the Acquired Leases, and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate files; (e) the machinery, equipment, computer hardware (other than pin pads, as set forth in Section 1.2(q)), office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes (with combinations and keys), and other personal property owned by the Company or any of its subsidiaries, and all leases relating to the foregoing, in each case to the extent exclusively related to an Acquired Store or Distribution Center; (f) all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to, on, or after the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rights, claims or causes of action relate to Assumed Liabilities; (g) to the extent permitted by Law, (i) all books and records (including all data and other information stored on discs, tapes or other media) of the Company or any of its subsidiaries relating to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Date, to the extent permitted by Law, Purchaser Sub shall provide copies of such transferred records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee; (h) any cash and cash equivalents in any Acquired Stores (including in cash registers) as of the close of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired Store, as applicable (the “Purchased Cash”); (i) all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to, on, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities; (j) the exclusive right to use all telephone numbers and facsimile numbers; (k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center; (l) to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data); (m) the Intellectual Property owned by the Company and its Affiliates and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property set forth on Section 1.1(m) of the Company Disclosure Schedules (the “Purchased Intellectual Property”); (n) the Contracts listed on Section 1.1(n) of the Company Disclosure Schedules, which will be assumed by Purchaser Sub (“Assumed Contracts”); and (o) all leases for the use and occupancy by the regional, divisional or district offices set forth on Section 1.1(o) of the Company Disclosure Schedules (collectively, the “Acquired Regional Offices”) and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereon.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Rite Aid Corp), Asset Purchase Agreement (Walgreens Boots Alliance, Inc.), Asset Purchase Agreement (Walgreens Boots Alliance, Inc.)
Purchased Assets. Upon the terms and subject to the conditions of this Agreement, on at the Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date)Closing, the Company shallSeller shall sell, convey, assign and transfer, and Seller shall cause its Affiliates, the other applicable Asset Seller Entities to sell, transferconvey, assign, convey assign and deliver transfer to Purchaser Subthe applicable Designated Purchaser, and Purchaser Sub shall, or shall cause the other applicable Designated Purchasers to, purchase from the Company and, as applicable, its Affiliatesapplicable Asset Seller Entities, free and clear of any Liens, other than Permitted Encumbrances, all Liens (except for Permitted Liens) all of the right, title and interest of Seller and the Company other Asset Seller Entities, in and its Affiliates, in, to and under all of the following assets, rights and properties and rights owned, held or used by the Company and its Affiliates, exclusively relating to or exclusively used in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating to any Acquired Store or Distribution Center (collectively, the “Purchased Assets”):
(ai) all Inventory and supplies real property rights in respect of the Company and its Affiliates and the fixed assets and tangible property physically located at the Acquired Stores and the Distribution CentersTransferred Real Property;
(b) to the extent transferable, the Permits held by the Company and its Affiliates;
(cii) the Company Owned Real Property together with all buildings, structures, fixtures and improvements located thereon or attached thereto and any easements, rights-of-way, and other appurtenants (and all title documents, surveys, related construction plans and documents and related real estate files with respect to the Company Owned Real Property);
(d) the Acquired Leases, and all subleases, licenses or concessions thereundertangible personal property, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate files;
(e) the machinery, equipment, computer hardware mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media, fixtures, office equipment and other tangible property of any kind (other than pin padsany Information Technology Assets, as set forth which are solely addressed in Section 1.2(q2.01(a)(xviii) and Section 2.01(a)(xix)), office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes that is (with combinations and keysA) subject to Section 2.01(b)(vi), located at the Purchaser Occupied Real Property and other personal property owned by the Company used primarily in or any of its subsidiaries, and all leases relating primarily related to the foregoingTriage Business, (B) set forth on Schedule 2.01(a)(ii) or (C) located at the facility of a Third Party supplier to any Asset Seller Entity and used primarily in or primarily related to the Triage Business;
(iii) the spare parts and calibration equipment located at the portion of the Transferred Real Property depicted on Schedule 2.01(a)(iii) that are used primarily in or primarily related to the Triage Business;
(iv) subject to Section 2.04, (A) the rights under Contracts to which any Asset Seller Entity is a party that are used, but not exclusively, in the Triage Business or relate, but not exclusively, to any Purchased Asset or Assumed Liability (each such Contract, a “Shared Contract”), in each case to the extent used in or related to the Triage Business, and (B) all rights under the Contracts to which any Asset Seller Entity is a party that are exclusively used in the Triage Business or exclusively related to any Purchased Asset or Assumed Liability (each such Contract, an Acquired Store “Exclusive Contract”), in the case of each of (A) and (B) except (1) for Contracts the subject of Sections 2.01(a)(v) and Section 2.01(a)(vi), (2) as provided in Section 2.01(b)(iii), Section 2.01(b)(iv), Section 2.01(b)(vii) or Distribution CenterSection 2.01(b)(x) and (3) for Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity (including with respect to Information Technology Assets), which are intended to be addressed in Section 2.01(a)(v);
(fv) subject to Section 2.04, (A) all rightsrights under the Exclusive Contracts listed on Schedule 2.01(a)(v)(A) and (B) the rights under the Shared Contracts listed on Schedule 2.01(a)(v)(B), claims or causes of action against third parties relating to the assets, properties, business extent used in or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or related to the Assumed Liabilities, arising out of events Triage Business;
(vi) the rights under the Contracts by and between any Asset Seller Entity and (A) a Transferred Employee or transactions occurring, or facts or circumstances existing, prior to, on, or after (B) an independent contractor that is identified on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center ClosingTriage Independent Contractor List, as applicableupdated pursuant to Section 7.01(b), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only case to the extent such rights, claims used in or causes of action relate related to Assumed Liabilitiesthe Triage Business;
(gvii) to (A) the extent permitted by Law, (ipatents and patent applications listed on Schedule 2.01(a)(vii)(A) all books and records (including all data reissues, divisions, continuations, continuations-in-part and other information stored on discs, tapes or other media) of the Company or any of its subsidiaries relating to the assets, properties, business extensions thereof); and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores patents and (Cpatent applications listed on Schedule 2.01(a)(vii)(B) historical financial information except to the extent exclusively relating to the Acquired Stores), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Date, to the extent permitted by Law, Purchaser Sub shall provide copies of such transferred records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee;
(h) any cash and cash equivalents in any Acquired Stores (including in cash registersall reissues, divisions, continuations, continuations-in-part and extensions thereof) as of the close of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired Store, as applicable (the “Purchased CashSpecified Patents”); provided that the Specified Patents also shall be subject to the license granted pursuant to Section 6.12(b);
(iviii) all guarantees, warranties and indemnities related subject to the ownership or operation of the Purchased Assets prior to, on, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities;
(j) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) to the extent transfer is not contractually prohibited or prohibited by LawSection 6.09, the historical customer data related to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such dataTrademarks listed on Schedule 2.01(a)(viii);
(mA) subject to Schedule 2.01(a)(ix)(A), the Antibody Assets, other Know-How and Other Intellectual Property owned by the Company Asset Seller Entities that are used exclusively in the Triage Business (the “Exclusive Triage Know-How”), and (B) co-ownership of an undivided interest (with Seller and its Affiliates Affiliates) in the Antibody Assets, other Know-How and exclusively related to any Acquired Store or Distribution Center, including Other Intellectual Property owned by the Asset Seller Entities that are (1) used in the Triage Business and that do not constitute Exclusive Triage Know-How, or (2) are set forth on Section 1.1(mSchedule 2.01(a)(ix)(A) of the Company Disclosure Schedules (the Antibody Assets and other Know-How and Other Intellectual Property described in this Section 2.01(a)(ix), collectively, with the Intellectual Property described in Section 2.01(a)(v), Section 2.01(a)(vii) and Section 2.01(a)(viii), the “Purchased Transferred Intellectual Property”);
(nx) subject to Section 2.04 and to the extent transferable, (A) subject to Schedule 2.01(a)(ix)(A), the Antibody Assets, other Know-How and Other Intellectual Property owned by the Asset Seller Entities that (1) are used exclusively in (x) the Contracts development programs conducted by the Asset Seller Entities with respect to the products that are set forth on Schedule 2.01(a)(x), as such development programs exist as of the Closing, and (y) any other products in development for the Triage system as of the date of this Agreement, as evidenced by written records (the development programs and products in development described in this Section 2.01(a)(x)(A)(1), the “Development Projects”), or (2) was, prior to the date of this Agreement, used exclusively in the Discontinued Products and (B) co-ownership of an undivided interest (with Seller and its Affiliates) in the Antibody Assets, other Know-How and Other Intellectual Property owned by the Asset Seller Entities and that are not included in clause (A) of this Section 2.01(a)(x) and that (1) in the case of the Development Projects, is used therein as of the Closing and (2) in the case the Discontinued Products, was, prior to the date of this Agreement, used therein (the Antibody Assets and other Know-How and Other Intellectual Property described in this Section 2.01(a)(x), collectively, the “Additional Assigned Intellectual Property”);
(xi) except as provided in Section 2.01(b)(xii), subject to Section 2.04 and to the extent transferable, (A) the Registrations used exclusively in or related exclusively to the distribution, marketing, promotion, selling or offering for sale of the Products, (B) any pending applications for the same and (C) the remaining rights of the Asset Seller Entities, if any, in Registrations previously used exclusively in the distribution, marketing, promotion, selling or offering for sale of the Products that have expired or terminated prior to the Closing Date;
(xii) subject to Section 2.04 and to the extent transferable, the Governmental Authorizations held by the Asset Seller Entities used exclusively in or related exclusively to the Triage Business or the Purchased Assets;
(xiii) subject to Section 6.08, all advertising, marketing, training and promotional materials and all other printed or written materials, including website content and the design of such websites protected by applicable Law, in each case that is used exclusively in, or related exclusively to, the Triage Business;
(xiv) all inventories used or intended for use in the Triage Business (the “Transferred Inventory”), including (A) raw materials, but solely to the extent used or intended for use in the Triage Business, and (B) all works in process, semi-finished and finished products, stores, replacement and spare parts, packaging and labelling materials, operating supplies and inventory on consignment, in transit or deposited in a warehouse, in each case to the extent used or intended for use in the Products;
(xv) all credits, prepaid expenses, advance payments, security deposits, escrows and other prepaid items to the extent paid to a Third Party and to the extent directly related to the Triage Business;
(xvi) except to the extent related to or arising out of or in connection with any Excluded Liabilities or Excluded Assets, all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Transferred Intellectual Property and the Additional Assigned Intellectual Property, the right to use and recover for past infringements or misappropriations of Transferred Intellectual Property and the Additional Assigned Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Transferred Intellectual Property and the Additional Assigned Intellectual Property), in each case to the extent related to, arising out of or in connection with the Triage Business, the Purchased Assets or the Assumed Liabilities;
(xvii) subject to Section 6.10, to the extent permitted by applicable Law, (A) sole ownership of Books, Records and Files and Tax Returns relating exclusively to the Triage Business, the Purchased Assets or the Assumed Liabilities, and (B) co-ownership of an undivided interest (with each Party retaining, subject to Section 6.04, the right to use, license, disclose, grant access to, transfer and convey the same without restriction except as expressly set forth in Sections 6.04(b), (c) and (d)) in any Books, Records and Files and Tax Returns to the extent relating to the Triage Business, the Purchased Assets or the Assumed Liabilities and not included in clause (A) of this Section 2.01(a)(xvii); provided that Seller may redact any information not related to the Triage Business from any Books, Records and Files or Tax Returns (the documents and other tangible and electronic embodiments of the items described in clauses (A) and (B) of this Section 2.01(a)(xvii), the “Triage Business Records”);
(xviii) except for the items described in Section 2.01(a)(xix) and Section 2.01(b)(viii), and subject to Section 2.04, (A) the Information Technology Assets listed on Section 1.1(nSchedule 2.01(a)(xviii) and (B) (1) all rights under Exclusive Contracts to which any Asset Seller Entity is a party pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity for the use of the Company Disclosure SchedulesInformation Technology Assets described in clause (A) and which rights are necessary for the use of or currently used in the use of such Information Technology Assets and (2) the rights under the Shared Contracts to which any Asset Seller Entity is a party pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity for the use of the Information Technology Assets described in clause (A) and which rights are necessary for the use of or currently used in the use of such Information Technology Assets, in the case of this subclause (2) to the extent used in or related to the Triage Business;
(xix) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by the Transferred Employees;
(xx) without duplication of the assets, rights and properties described in Sections 2.01(a)(ix) and (x), (A) the cell lines used exclusively in the Triage Business and described more particularly on Schedule 2.01(a)(xx)(A), and (B) an aliquot of the cell lines used both in the Triage Business and the Excluded Business and described more particularly on Schedule 2.01(a)(xx)(B);
(xxi) the sample banks described on Schedule 2.01(a)(xxi);
(xxii) the rights under Contracts (other than any license agreement for Intellectual Property) to which will any Asset Seller Entity is a party, to the extent relating to the leasing, maintenance, outfitting, or other operation of the Transferred Real Property, but excluding (A) Contracts that exclusively relate to any activities of the Excluded Businesses that may be assumed by Purchaser Sub conducted at the Transferred Real Property, (“Assumed Contracts”)B) Contracts that relate to the manufacture of products, and (C) any Ancillary Agreements; and
(oxxiii) all leases for the use and occupancy by the regional, divisional or district offices set forth on Section 1.1(o) goodwill of the Company Disclosure Schedules (collectively, the “Acquired Regional Offices”) and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is Triage Business as a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereongoing concern.
Appears in 4 contracts
Samples: Triage Purchase Agreement (Alere Inc.), Triage Purchase Agreement (Quidel Corp /De/), Purchase Agreement (Alere Inc.)
Purchased Assets. Upon the terms and subject to the conditions of this Agreement, on at the Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date)Closing, the Company shallSeller shall sell, convey, assign and transfer, and Seller shall cause its Affiliates, the other applicable Asset Seller Entities to sell, transferconvey, assign, convey assign and deliver transfer to Purchaser Subthe applicable Designated Purchaser, and Purchaser Sub shall, or shall cause the other applicable Designated Purchasers to, purchase from the Company and, as applicable, its Affiliatesapplicable Asset Seller Entities, free and clear of all Liens (except for any Liens, other than Permitted Liens) , all of the right, title and interest of Seller and the Company other Asset Seller Entities, in and its Affiliates, in, to and under all of the following assets, rights and properties and rights owned, held or used by the Company and its Affiliates, exclusively relating to or exclusively used in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating to any Acquired Store or Distribution Center (collectively, the “Purchased Assets”):
(ai) all Inventory subject to Section 2.04, the rights under (A)(1) the BC Agreements as in effect on the date hereof or as modified or amended with the consent of Purchaser pursuant to Section 6.01(b) and supplies (2) each other Contract to which any Asset Seller Entity is a party that relates exclusively to the sale of Product by such Asset Seller Entity to a Third Party distributor or customer (each of the Company and its Affiliates and the fixed assets and tangible property physically located at the Acquired Stores and the Distribution Centers;
(b) to the extent transferableBC Agreements, the Permits held by the Company and its Affiliates;
(c) the Company Owned Real Property together with all buildingseach other Contract included in the Purchased Assets pursuant to clause (A)(2) of this Section 2.01(a)(i), structures, fixtures and improvements located thereon or attached thereto and any easements, rights-of-wayan “Exclusive Contract”), and other appurtenants (and all title documents, surveys, related construction plans and documents and related real estate files with respect to the Company Owned Real Property);
(dB) the Acquired Leases, and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate files;
(e) the machinery, equipment, computer hardware each Contract (other than pin padsany BC Agreement) to which any Asset Seller Entity is a party that relates, as set forth in Section 1.2(q))but not exclusively, office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes (with combinations and keys), and other personal property owned by the Company or any of its subsidiaries, and all leases relating to the foregoingsale of Product by such Asset Seller Entity to a Third Party distributor or customer, in each case to the extent exclusively used in or related to an Acquired Store or Distribution Centerthe Business (each such Contract, a “Shared Contract”);
(fii) subject to the Scios Assignment and Assumption Agreement, the applicable rights under the Scios Agreement as in effect on the date hereof or as modified or amended with the consent of Purchaser pursuant to Section 6.01(b);
(iii) except as provided in Section 2.01(b)(vi), subject to Section 2.04 and to the extent transferable, the Registrations and Government Authorizations used exclusively in the distribution, marketing, promotion, selling or offering for sale of the Product;
(iv) subject to Section 6.07, all rightsadvertising, claims marketing and promotional materials and all other printed or written materials, including website content and the design of such websites protected by applicable Law, in each case that is used exclusively in, or related exclusively to, the Business;
(v) except as provided in Section 2.01(b)(iii), all inventories of finished Product (the “Transferred Inventory”);
(vi) except to the extent related to or arising out of or in connection with any Excluded Liabilities or Excluded Assets, all claims, counterclaims, causes of action against third parties relating action, choses in action, rights of recovery, and rights of set-off of any kind to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilitiesextent related to, arising out of events or transactions occurringin connection with the Business, or facts or circumstances existing, prior to, on, or after the Closing Date (Purchased Assets or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rights, claims or causes of action relate to Assumed Liabilities;
(gvii) subject to the extent permitted by Law, (i) all books and records (including all data and other information stored on discs, tapes or other media) of the Company or any of its subsidiaries relating to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Date6.08, to the extent permitted by applicable Law, Purchaser Sub shall provide copies (A) sole ownership of such transferred records Books, Records and Files and Tax Returns relating exclusively to the Company at Business, the Company’s request due Purchased Assets or the Assumed Liabilities, and (B) co-ownership of an undivided interest (with each Party retaining, subject to any claim or threatened claim against Section 6.04, the Company or its Affiliates by a Transferred Employee;
right to use, license, disclose, grant access to, transfer and convey the same without restriction except as expressly set forth in Sections 6.04(b), (hc) any cash and cash equivalents (d)) in any Acquired Stores Books, Records and Files and Tax Returns to the extent relating to the Business, the Purchased Assets or the Assumed Liabilities and not included in clause (including in cash registersA) as of this Section 2.01(a)(vii); provided that Seller may redact any information not related to the Business from any Books, Records and Files or Tax Returns (the documents and other tangible and electronic embodiments of the close items described in clauses (A) and (B) of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired Storethis Section 2.01(a)(vii), as applicable (the “Purchased CashBusiness Records”);
(i) all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to, on, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities;
(jviii) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(lcell lines described more particularly on Schedule 2.01(a)(viii) to the extent transfer is not contractually prohibited conveyed to Purchaser or prohibited by Law, the historical customer data related an Affiliate of Purchaser pursuant to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data);
(m) the Intellectual Property owned by the Company and its Affiliates and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property set forth on Section 1.1(m) of the Company Disclosure Schedules (the “Purchased Intellectual Property”);
(n) the Contracts listed on Section 1.1(n) of the Company Disclosure Schedules, which will be assumed by Purchaser Sub (“Assumed Contracts”)Triage Purchase Agreement; and
(oix) all leases for the use and occupancy by the regional, divisional or district offices set forth on Section 1.1(o) goodwill of the Company Disclosure Schedules (collectively, the “Acquired Regional Offices”) and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is Business as a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereongoing concern.
Appears in 4 contracts
Samples: Purchase Agreement (Alere Inc.), Purchase Agreement (Quidel Corp /De/), Purchase Agreement (Alere Inc.)
Purchased Assets. Upon the terms and subject to the satisfaction of the conditions of contained in this Agreement, on at the Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date)Closing, the Company shallSeller will sell, and shall cause its Affiliatesassign, to sellconvey, transfer, assign, convey and deliver to Purchaser SubBuyer, and Purchaser Sub shall Buyer will purchase and acquire from the Company and, as applicable, its AffiliatesSeller, free and clear of all Liens Encumbrances (except for Permitted Liens) Encumbrances), all of Seller’s right, title title, and interest of the Company and its Affiliates, in, to to, and under all of the assetsreal and personal property, properties tangible or intangible, described below, as the same exists at the Effective Time (and, as permitted or contemplated hereby, with such additions and rights owneddeletions as shall occur from the date hereof through the Effective Time), held or used by the Company and its Affiliates, exclusively relating to or exclusively used in any Acquired Store or Distribution Center, including the following assets except to the extent exclusively relating to any Acquired Store or Distribution Center that such assets are Excluded Assets (collectively, the “Purchased Assets”):
(a) The following real and personal property, plant and equipment and related tangible property:
(i) the real property and real property interests described on Schedule 2.1(a)(i), including buildings, structures, pipelines, other improvements, and fixtures located thereon; the leasehold interests under the leases described on Schedule 2.1(a)(i); and the Easements (all Inventory and supplies of the Company foregoing, the “Real Property”);
(ii) all other natural gas distribution utility system assets installed in the Territory and its Affiliates used principally in the Business, as generally described on Schedule 2.1(a)(ii);
(iii) all parts and other inventory that are held for use specifically in connection with the fixed Business (collectively, the “Inventory”);
(iv) all information technology and communications equipment that is installed or in use solely at or on, and used principally in connection with the operation of, the Purchased Assets, except as otherwise provided in Section 2.2(f) (the “IT Assets”);
(v) all motor vehicles, trailers and similar rolling stock that is held for use principally in connection with the Business, to the extent owned by Seller as of the Effective Time (including as a result of any purchase thereof by Seller pursuant to Section 7.8(b)) (the “Vehicles”);
(vi) all furnishings, fixtures, machinery, equipment, materials and other tangible personal property owned by Seller (other than Inventory, IT Assets and Vehicles) that is located in the Territory and that is used principally in connection with the operation of Business;
(vii) any assets and tangible property physically located at that are leased on the Acquired Stores and date hereof by Seller but that are purchased by Seller pursuant to Section 7.6(c) for inclusion in the Distribution CentersPurchased Assets;
(b) all unbilled revenues allocable to the extent transferable, the Permits held by the Company and its AffiliatesBuyer in accordance with Section 3.5;
(c) the Company Owned Real Property together with all buildingsunder-recovered purchased gas cost adjustment charges, structuresprepayments, fixtures deferred charges and improvements located thereon or attached thereto similar items of the type included in the applicable FERC Accounts set forth on Appendix A and any easements, rights-of-way, and other appurtenants (and all title documents, surveys, principally related construction plans and documents and related real estate files with respect to the Company Owned Real Property)Business, to the extent that upon the Effective Time Buyer will be entitled to the benefit of such items;
(d) the Acquired LeasesBusiness Agreements, and all subleases, licenses or concessions thereunder, including the right subject to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate filesSection 7.6(b);
(e) all Permits used or held by Seller principally in connection with the machinery, equipment, computer hardware (other than pin pads, as set forth in Section 1.2(q)), office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes (with combinations and keys), and other personal property owned by Business or the Company ownership or operation of any of its subsidiariesthe Purchased Assets, and all leases relating to the foregoing, in each case except to the extent exclusively related that, notwithstanding compliance by Seller with its obligations hereunder, any such Permits are prohibited by applicable Law or the terms of such Permits from being assigned to an Acquired Store or Distribution CenterBuyer in connection with the transactions contemplated hereby (the “Transferable Permits”);
(f) all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to, on, or after the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rights, claims or causes of action relate to Assumed LiabilitiesDocuments;
(g) to the extent permitted by Law, (i) all books and records (including all data and other information stored on discs, tapes warranties against manufacturers or other media) of the Company or any of its subsidiaries relating to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy of Company Rx Data and other data vendors relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Date, to the extent permitted by Law, Purchaser Sub shall provide copies of such transferred records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employeetransferrable;
(h) any cash Claims and cash equivalents in any Acquired Stores (including in cash registers) as defenses of Seller to the close of business on extent such Claims or defenses relate to the Business Day immediately preceding the Closing Date Purchased Assets or the Subsequent Closing Date for Assumed Obligations, provided such Acquired Store, as applicable (the “Purchased Cash”)Claims and defenses will be assigned by Seller to Buyer without warranty or recourse;
(i) all guaranteesnotwithstanding any provision of Section 2.2, warranties the assets and indemnities related to the ownership or operation of the Purchased Assets prior to, on, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicableother rights set forth on Schedule 2.1(i), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities;
(j) the exclusive right assets transferred pursuant to use all telephone numbers and facsimile numbersSection 7.10 with respect to the Benefit Plans;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data assets that are principally related to the Company’s Wellness+ program relating to customers current operation of the Acquired Stores (and to Business, other than the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data);
(m) the Intellectual Property owned by the Company and its Affiliates and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property set forth on Section 1.1(m) of the Company Disclosure Schedules (the “Purchased Intellectual Property”);
(n) the Contracts listed on Section 1.1(n) of the Company Disclosure Schedules, which will be assumed by Purchaser Sub (“Assumed Contracts”); and
(o) all leases for the use and occupancy by the regional, divisional or district offices set forth on Section 1.1(o) of the Company Disclosure Schedules (collectively, the “Acquired Regional Offices”) and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereonExcluded Assets.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Algonquin Power & Utilities Corp.), Asset Purchase Agreement (Atmos Energy Corp), Asset Purchase Agreement
Purchased Assets. Upon On the terms and subject to the conditions of ---------------- contained in this Agreement, on the Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date), the Company shall, and shall cause its Affiliates, Triton Entities agree to sell, transfer, assign, convey transfer and deliver to Purchaser SubPurchaser, and Purchaser Sub shall agrees to purchase from the Company andTriton Entities, as applicable, its Affiliates, free and clear all of all Liens (except for Permitted Liens) all the Triton Entities' entire right, title and interest of the Company in and its Affiliates, in, to and under all of the assets, properties and rights owned, held or used by the Company and its Affiliates, exclusively relating to or exclusively used in any Acquired Store or Distribution Center, including only the following assets (collectively referred to herein as the extent exclusively relating to any Acquired Store or Distribution Center (collectively, the “"Purchased Assets”"):
(a) those parcels of real property that are owned by the Triton Entities and specified on Schedule 1.2(a) (the "Owned Real Property"), together --------------- with any and all Inventory easements for ingress, egress and supplies of the Company and its Affiliates and the fixed assets and tangible property physically located at the Acquired Stores and the Distribution Centersutilities which are attendant to Owned Real Property;
(b) those ground leases or subleases specified on Schedule 1.2(b) --------------- (collectively, the "Real Property Leases"), together with any and all easements for ingress, egress and utilities which are attendant to the extent transferable, the Permits held by the Company and its AffiliatesReal Property Leases;
(c) those towers, tower foundations, utilities, fences and landscaping specified on Schedule 1.2(c) which have been constructed upon the Company --------------- Owned Real Property together with all buildings, structures, fixtures and improvements located thereon or attached thereto and any easements, rights-of-way, and other appurtenants the real property described in the Real Property Leases (and all title documents, surveys, related construction plans and documents and related real estate files with respect to the Company Owned "Leased Real Property") (collectively, the "Tower Facilities");
(d) the Acquired Leases, and all subleasesthose leases, licenses or concessions thereunder, including the and other agreements specified on Schedule 1.2(d) which grant third parties a right to all security deposits, and other amounts and instruments deposited by, on behalf of, use or for occupy a portion of -------------- the benefit of, Owned Real Property (the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired "Lease documents, related construction plans and documents and related real estate filesAgreements");
(e) the machinerythose subleases, equipment, computer hardware (other than pin pads, as set forth in Section 1.2(q)), office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes (with combinations and keys), licenses and other personal property owned by agreements specified on Schedule 1.2(e) which grant third parties a right to use or occupy a portion of --------------- the Company Leased Real Property or any of its subsidiariesgrant a right to use or occupy space on the Tower Facilities (collectively, and all leases relating to the foregoing, in each case to the extent exclusively related to an Acquired Store or Distribution Center"Collocation Agreements");
(f) all rightsthose subleases, claims licenses or causes of action against other agreements specified on Schedule 1.2(f) which grant the Triton Entities a right to use or occupy space --------------- on a third parties relating party's tower facilities and a right to use or occupy the assets, properties, business or operations of the Acquired Storesreal property underlying such tower facilities (collectively, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to, on, or after the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable"Reciprocal Agreements"), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rights, claims or causes of action relate to Assumed Liabilities;
(g) to the extent permitted by Lawthose permits, (i) all books and records (including all data licenses, franchises and other information stored on discs, tapes or other media) of the Company or any of its subsidiaries authorizations relating to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Date, to the extent permitted by Law, Purchaser Sub shall provide copies of such transferred records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee;and
(h) any cash and cash equivalents in any Acquired Stores (including in cash registers) as assets of the close of business on type specifically described in this Section 1.2 ----------- that are acquired after the Business Day immediately preceding date hereof and prior to Closing and that are agreed to in writing by the Closing Date parties at or the Subsequent Closing Date for such Acquired Store, as applicable (the “Purchased Cash”);
(i) all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to, on, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities;
(j) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data);
(m) the Intellectual Property owned by the Company and its Affiliates and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property set forth on Section 1.1(m) of the Company Disclosure Schedules (the “Purchased Intellectual Property”);
(n) the Contracts listed on Section 1.1(n) of the Company Disclosure Schedules, which will be assumed by Purchaser Sub (“Assumed Contracts”); and
(o) all leases for the use and occupancy by the regional, divisional or district offices set forth on Section 1.1(o) of the Company Disclosure Schedules (collectively, the “Acquired Regional Offices”) and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereonClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Triton Management Co Inc)
Purchased Assets. Upon the terms and subject to the conditions of this Agreement, on the Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date), the Company shall, and shall cause its Affiliates, to sell, transfer, assign, convey and deliver to Purchaser Sub, and Purchaser Sub shall purchase from the Company and, as applicable, its Affiliates, free and clear of all Liens (except for Permitted Liens) all right, title and interest of the Company and its Affiliates, in, to and under all of the assets, properties and rights owned, held or used by the Company and its Affiliates, exclusively relating to or exclusively used in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating to any Acquired Store or Distribution Center (collectively, the “Purchased Assets”):
(a) Schedule 3. 13 )(a) correctly describes (including address, type of improvements and use) all Inventory Owned Property, all Leased Property and supplies all material other Real Property Interests, any title insurance policies and surveys with respect thereto, and any Liens thereon, specifying in the case of leases or subleases, the name of the Company and its Affiliates lessor or sublessor and the fixed assets and tangible property physically located at the Acquired Stores and the Distribution Centers;lease term.
(b) to Schedule 3.13(b) correctly describes all material personal property included in the extent transferablePurchased Assets, and any Liens thereon, specifying in the case of leases or subleases, the Permits held by name of the Company lessor or sublessor and its Affiliates;the lease term. Schedule 3.13(b) separately identifies each capital lease included in the Purchased Assets.
(c) The Sellers have good and marketable, indefeasible, fee simple title to, or in the Company Owned Real Property together with case of leased real property or personal property has valid leasehold interests in, all buildingsPurchased Assets (whether real, structurespersonal, fixtures and improvements located thereon tangible or attached thereto and intangible). No Purchased Asset is, or when delivered to Buyer (either directly or indirectly through the delivery of the Maryland LLC Shares) will be, subject to any easementsLien, rights-of-way, and other appurtenants except:
(i) Liens disclosed in the Financial Statements;
(ii) Liens for taxes not yet due or being contested in good faith (and all title documentsfor which adequate accruals or reserves have been established in the Financial Statements); or
(iii) Liens which do not materially detract from the value of such Purchased Asset, surveysor materially interfere with any present or intended use of such Purchased Asset (clauses (i) -,(iii) of this Section 3.13(c) are, related construction plans and documents and related real estate files with respect to collectively, the Company Owned Real Property"Permitted Liens");.
(d) Subject to such exceptions as would not individually or in the Acquired Leases, and all subleases, licenses or concessions thereunder, including the right to all security deposits, aggregate have a Material Adverse Effect and other amounts and instruments deposited bythan such developments or facts which are disclosed to Buyer within the terms of this Agreement or Schedules thereto, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or there are no developments affecting any of its Affiliates is a partythe material Purchased Assets pending or, and all Acquired Lease documentsto the knowledge or the Sellers threatened, related construction plans and documents and related real estate files;which might materially detract from the value, materially interfere with any present or intended use or materially adversely affect the marketability of such Purchased Assets.
(e) Subject to such exceptions as would not individually or in the machinery, equipment, computer hardware (other than pin pads, aggregate have a Material Adverse Effect and except as set forth in Section 1.2(q)reflected on Schedule 3.13(e), office equipmentthe plants, vehiclesbuildings, forkliftsstructures and equipment included in the Purchased Assets have no defects, trailersare in good operating condition and repair and have been reasonably maintained consistent with standards generally followed in the franchise and private cable industry as applicable (giving due account to the age and length of use of same, tractors, furniture, shelving, safes (with combinations ordinary wear and keystear excepted), are adequate and suitable for their present uses and, in the case of plants, buildings and other personal structures, are structurally sound.
(f) The plants, buildings and structures included in the Purchased Assets currently have access to (i) public roads or valid easements over private streets or private property owned by for such ingress to and egress from all such plants, buildings and structures and (ii) water supply, storm and sanitary sewer facilities, telephone, gas and electrical connections, fire protection, drainage and other public utilities, in each case as is necessary for the Company conduct of the Systems in all material respects as they have heretofore been conducted. None of the structures on the Owned Property or any the Real Property Interests encroaches upon real property of its subsidiariesanother Person, and all leases relating to the foregoing, no structure of any other Person substantially encroaches upon any other real property in each case to the extent exclusively related to an Acquired Store such encroachment is or Distribution Center;
(f) all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to, on, or after the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rights, claims or causes of action relate to Assumed Liabilities;may be material.
(g) to To the extent permitted by Lawknowledge of the Sellers, (i) the Owned Property and the Real Property Interests, and their continued use, occupancy and operation as currently used, occupied and operated, does not in any material respect constitute a nonconforming use under all books and records (including all data applicable building, zoning, subdivision and other information stored on discs, tapes or other media) of the Company or any of its subsidiaries relating to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Date, to the extent permitted by Law, Purchaser Sub shall provide copies of such transferred records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee;
(h) any cash and cash equivalents in any Acquired Stores (including in cash registers) as of the close of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired Store, as applicable (the “Purchased Cash”);
(i) all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to, on, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities;
(j) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data);
(m) the Intellectual Property owned by the Company and its Affiliates and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property set forth on Section 1.1(m) of the Company Disclosure Schedules (the “Purchased Intellectual Property”);
(n) the Contracts listed on Section 1.1(n) of the Company Disclosure Schedules, which will be assumed by Purchaser Sub (“Assumed Contracts”); and
(o) all leases for the land use and occupancy by the regionalsimilar laws, divisional or district offices set forth on Section 1.1(o) of the Company Disclosure Schedules (collectively, the “Acquired Regional Offices”) regulations and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereonordinances.
Appears in 1 contract
Samples: Asset Purchase Agreement (Onepoint Communications Corp /De)
Purchased Assets. Upon Subject to the terms and subject to the conditions of this Agreement, on the Closing Date (or and at the applicable Subsequent Closing Date or Distribution Center Closing Date)Closing, the Company Seller shall, and shall cause its Affiliatesthe other Seller Entities to, to sell, transfer, assign, transfer and convey and deliver to Purchaser Subor to Affiliates designated by Purchaser, and Purchaser Sub shall, and shall purchase cause any of its applicable Affiliates to, purchase, acquire and accept from the Company andSeller Entities, as applicable, its Affiliates, free and clear all of all Liens (except for Permitted Liens) all the Seller Entities’ right, title and interest as of the Company Closing in and its Affiliates, in, to (1) any and under all of the assets, rights and properties of every kind and rights owneddescription, held whether tangible or used by the Company and its Affiliatesintangible or real, personal or mixed, exclusively relating to used, or held exclusively used for use, in any Acquired Store or Distribution Center, including the operation of the Business and (2) the following (together with the assets to the extent exclusively relating to any Acquired Store or Distribution Center specified in clause (collectively1), the “Purchased Assets”):
(ai) all Inventory and supplies One hundred percent (100%) of the Company equity interest (the “Purchased Entity Shares”) in the entities listed on Section 2.4(a)(i) of the Seller Disclosure Schedules (each, a “Purchased Entity,” and, collectively, the “Purchased Entities”); (ii) the issued and its Affiliates outstanding equity interests held by Seller Entities of each of the entities listed on Section 2.4(a)(ii) of the Seller Disclosure Schedules (each, a “Purchased Consolidated Venture”); and (iii) the fixed assets issued and tangible property physically located at outstanding equity interests held by Seller Entities (together with the Acquired Stores equity interests referred to in clause (ii), the “Purchased Venture Interests”) of each of the entities listed on Section 2.4(a)(iii) of the Seller Disclosure Schedules (each, a “Purchased Non-Consolidated Venture,” and together with the Distribution CentersPurchased Consolidated Ventures, the “Purchased Ventures”);
(b) All Contracts, including each Contract set forth on Section 2.4(b) of the Seller Disclosure Schedules, to the extent transferablerelated to the Business (collectively, such Contracts or portion of such Contracts, as the case may be, and including any Contracts to the extent related to the Business to which a Purchased Company or a Subsidiary of a Purchased Company is a party, the Permits held “Specified Business Contracts”), it being agreed that any such Contracts that are Shared Contracts shall be governed by Section 2.12(c) and shall be treated as Purchased Assets to the Company extent provided therein; provided that the Seller Entities may update Section 2.4(b) of the Seller Disclosure Schedules no later than ten (10) Business Days prior to the Closing Date to account for Contracts that were entered into or that have terminated in accordance with their terms after the date of this Agreement and its Affiliatesprior to the Closing Date;
(c) (i) The owned real property listed in Section 2.4(c)(i) of the Company Seller Disclosure Schedule (the “Owned Real Property Property”), together with all buildings, structuresimprovements, fixtures and improvements located thereon or attached all appurtenances thereto and any easements, rights-of-wayrights in respect thereof, and other appurtenants (ii) the leases governing the leased real property listed in Section 2.4(c)(ii) of the Seller Disclosure Schedules (each, a “Real Property Lease” and all title documentssuch leased real property, surveys, related construction plans and documents and related real estate files with respect to the Company Owned Real “Transferred Leased Property”);
(d) All Intellectual Property primarily used or held primarily for use in the Acquired Leases, and all subleases, licenses or concessions thereunderoperation of the Business, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, Intellectual Property listed in Section 2.4(d) of the Seller Disclosure Schedules (collectively with any Intellectual Property primarily used or held primarily for use in the benefit ofoperation of the Business by any Purchased Company or a Subsidiary of a Purchased Company, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate files“Business Intellectual Property”);
(e) Any and all Tangible Personal Property located on the machinery, equipment, computer hardware (other than pin padspremises of the Owned Real Property or the Transferred Leased Property and the Tangible Personal Property listed in Section 2.4(e) of the Seller Disclosure Schedules, as set forth in such Section 1.2(q)), office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes 2.4(e) of the Seller Disclosure Schedules is updated pursuant to Section 5.21; provided that the Seller Entities may update Section 2.4(e) of the Seller Disclosure Schedules no later than ten (with combinations and keys), and other personal property owned by the Company or any of its subsidiaries, and all leases relating 10) Business Days prior to the foregoing, Closing Date to account for Tangible Personal Property that has been replaced in each case the ordinary course after the date of this Agreement and prior to the extent exclusively related to an Acquired Store or Distribution CenterClosing Date;
(f) all rights, claims All Information Technology exclusively used or causes of action against third parties relating to held exclusively for use in the assets, properties, business or operations operation of the Acquired StoresBusiness, including the Information Technology listed in Section 2.4(f) of the Seller Disclosure Schedules (collectively with any Information Technology exclusively used or held exclusively for use in the operation of the Business by any Purchased Company or a Subsidiary of a Purchased Company, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to, on, or after the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable“Business Information Technology”), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rights, claims or causes of action relate to Assumed Liabilities;
(g) Any and all trade receivables and other accounts receivable (other than from Seller and/or any of its Subsidiaries (other than a Purchased Company)) of the Business as of 11:59 p.m. Eastern Time on the day immediately preceding the Closing Date;
(h) Any and all prepaid expenses and security deposits of the Business as of 11:59 p.m. Eastern Time on the day immediately preceding the Closing Date;
(i) Any and all raw materials, work-in-process, finished goods, supplies and other inventories to the extent permitted used, or held for use, by Lawthe Business, including any such raw materials, work-in-process, finished goods, supplies and other inventories being held by (i) customers of the Business pursuant to consignment arrangements or (ii) suppliers of the Business under tolling arrangements (collectively with any raw materials, work-in-process, finished goods, supplies and other inventories to the extent used or held for use in the operation of the Business by any Purchased Company or a Subsidiary of a Purchased Company, the “Inventory”);
(j) Any and all goodwill, if any, of the Business;
(k) Any and all Business Permits primarily used or held primarily for use in the operation of the Business, including the Business Permits listed on Section 2.4(k) of the Seller Disclosure Schedules, and all pending applications or renewals thereof (including all Business Permits primarily used or held primarily for use in the operation of the Business and all pending applications therefor or renewals thereof by any Purchased Company or a Subsidiary of a Purchased Company, collectively, the “Transferred Permits”);
(l) Any and all claims, causes of action, defenses and rights of offset or counterclaim, or settlement agreements (in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent) arising out of the Specified Business Contracts;
(m) Copies of any and all documents, instruments, papers, books, records (other than Tax Returns and other books and records related to Taxes (including all data other than Tax Returns and other information stored on discs, tapes or other media) books and records related to Taxes of the Company Purchased Companies or any of its subsidiaries relating to the assetstheir Subsidiaries)), propertiesbooks of account, business files and operations of the Acquired Stores data (including customer and the Distribution Centers (supplier lists, and repair and performance records), catalogs, brochures, sales literature, promotional materials, certificates and other documents to the extent exclusively relating primarily related to the Acquired Stores Business and in the Distribution Centers) (but excluding (A) all personnel files possession of the Seller Entities, other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores), and (iii) any and all medical recordsbooks, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (or other materials that the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent Seller Entities are required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy (copies of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Datewhich, to the extent permitted by Law, will be made available to Purchaser Sub upon Purchaser’s reasonable request) and (ii) personnel and employment records for employees and former employees who are not Current Business Employees; provided that, with respect to any such books, records or other materials that are Purchased Assets pursuant to this clause (m), the Seller Entities shall provide be permitted to keep (A) one (1) copy of such books, records or other materials to the extent required to demonstrate compliance with applicable Law or pursuant to bona fide internal compliance procedures, (B) copies of such transferred books, records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee;
(h) any cash and cash equivalents in any Acquired Stores (including in cash registers) as of the close of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired Store, as applicable (the “Purchased Cash”);
(i) all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to, on, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities;
(j) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data);
(m) the Intellectual Property owned by the Company and its Affiliates and exclusively materials related to any Acquired Store Excluded Asset and (C) such books, records or Distribution Center, including Intellectual Property set forth on Section 1.1(m) other materials in the form of so-called “back-up” electronic tapes in the Company Disclosure Schedules (the “Purchased Intellectual Property”);ordinary course of business; and
(n) Any and all assets related to the Contracts listed on Purchased Entity Benefit Plans. The parties acknowledge and agree that a single asset may fall within more than one of clauses (a) through (n) in this Section 1.1(n2.4; such fact does not imply that (i) such asset shall be transferred more than once or (ii) any duplication of such asset is required. The parties also acknowledge that unless and until Seller has executed and delivered the Company Disclosure SchedulesAcceptance Notice relating to the French Offer, which will no French Assets shall be assumed by Purchaser Sub (“Assumed Contracts”); and
(o) all leases considered Purchased Assets for the use and occupancy by the regional, divisional or district offices set forth on purposes of this Section 1.1(o) of the Company Disclosure Schedules (collectively, the “Acquired Regional Offices”) and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereon2.4.
Appears in 1 contract
Samples: Purchase Agreement (Visteon Corp)
Purchased Assets. Upon the terms and subject to the conditions of set forth in this Agreement, on the Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date), the Company shall, and shall cause its Affiliates, subject to sell, transfer, assign, convey and deliver to Purchaser Sub, and Purchaser Sub shall purchase from the Company andBankruptcy Court approval, as applicable, at the Closing:
(a) Each Seller shall, as applicable, sell, convey, transfer, assign and deliver to Circles and/or one or more Affiliates of Circles designated in writing by Circles, and Circles and/or its Affiliatesapplicable Affiliates shall purchase, acquire and take assignment and delivery from such Sellers, all right and title to and interest in and to the following assets, properties, and rights (contractual or otherwise) owned by such Seller and primarily used or held for use in connection with or necessary for the operation of the MVNE Business (collectively, the “Circles Purchased Assets”) free and clear of all Liens Liens, claims or interests of any type or nature, whether known or unknown, of any Seller or any other party (except for other than Permitted Liens), including without limitation:
(i) all rightassets primarily related to the MVNE Business;
(ii) all agreements and telecommunications contracts where the Sellers provide software platform solutions related to the Sellers’ MVNE Business to telecommunications companies, including but not limited to the Key MVNE Customer Contracts;
(iii) all assets primarily related to the Sellers’ “Internet of Things” products and services related to the MVNE Business;
(iv) All deposits related to the MVNE Business, including all deposits and prepayments held by third parties pursuant to any executory contract or unexpired lease assumed and assigned to Circles which are related to the MVNE Business (excluding deposits related to Contracts that are not Assumed Contracts);
(v) Subject to the timing and process contemplated by the Sale Order, the Contracts, agreements, contract rights, leases of real property, leases of equipment, machinery or other tangible personal property license agreements, customer contracts, vendor contracts, Employment Contracts, purchase and sales orders (if any), financial instruments, royalty agreements, third party guaranties, indemnifications, arrangements and understandings, whether oral or written, to which any Seller is a party (whether or not legally bound thereby) and which primarily relate to the operation of the MVNE Business and which are designated as Assumed Contracts pursuant to Section 2.3(d) below (collectively the “Circles Assumed Contracts”);
(vi) The Circles Purchased Equity Interests;
(vii) All rights, title and interest interests of the Company Sellers and its their Affiliates in the Pareteum Africa JV Agreement;
(viii) All Accounts Receivable related to the MVNE Business;
(ix) all permits necessary for the operation of the MVNE Business or the ownership of the MVNE Business, transferable to Circles pursuant to their terms and in accordance with applicable Laws;
(x) all Intellectual Property Assets which relate to, or are used or held for use, in connection with, the MVNE Business, including but not limited to the Pareteum and Artilium brand names, and trademarks (whether registered or otherwise), ARTA software and Coreserver software;
(xi) all prepaid items and expenses primarily related to the MVNE Business, including prepayments of customers of the MVNE Business;
(xii) all books and records including customer or client lists, files, documentation, records and the related documentation primarily related to the MVNE Business or Circles Assumed Liabilities, but specifically excluding the books and records set forth in Section 2.2(f);
(xiii) all claims, indemnities, warranties, guarantees, refunds, causes of action, rights of recovery, rights of set-off and rights of recoupment of every kind and nature (whether or not known or unknown or contingent or non-contingent) primarily related to the MVNE Business, the Circles Purchased Assets or the Circles Assumed Liabilities (other than those on insurance policies of the Sellers);
(xiv) all Cash and Cash Equivalents (regardless of the derivation of such Cash or Cash Equivalents), less the Wind Down Amount and the Professional Fee Escrow Amount; provided that the Wind Down Amount and the Professional Fees Escrow Amount shall be Excluded Assets.
(xv) all other assets, properties, and rights used in the MVNE Business that are not defined below as Excluded Assets; and
(xvi) all claims and causes of action of any Debtor against Affiliates, incurrent Independent Directors, current officers, employee or current vendors or third party providers related to the MVNE Business, including such claims and causes of action arising under Chapter 5 of the Bankruptcy Code, including Sections 510, 541, 544, 545, 547, 548, 549, 550, 553 or 558, or similar state laws.
(b) Each Seller shall, as applicable, sell, convey, transfer, assign and deliver to CVG and/or one or more Affiliates of CVG designated in writing by CVG, and CVG and/or its applicable Affiliates shall purchase, acquire and take assignment and delivery from such Sellers, all right and title to and under all interest in and to the following assets, properties, and rights (contractual or otherwise) owned by such Seller and primarily used or held for use in connection with or necessary for the operation of the assets, properties and rights owned, held or used by the Company and its Affiliates, exclusively relating to or exclusively used in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating to any Acquired Store or Distribution Center Non-MVNE Business (collectively, the “CVG Purchased Assets” and, together with the Circles Purchased Assets, the “Purchased Assets”):) free and clear of all Liens, claims or interests of any type or nature, whether known or unknown, of any Seller or any other party (other than Permitted Liens), including without limitation:
(ai) all Inventory assets related to the Sellers’ Small and supplies of the Company Medium Business Enterprise products and its Affiliates and the fixed assets and tangible property physically located at the Acquired Stores and the Distribution Centersservices;
(bii) all assets related to the extent transferable, the Permits held by the Company and its AffiliatesSellers’ Mobile Virtual Network Operation business;
(ciii) the Company Owned Real Property together with all buildings, structures, fixtures and improvements located thereon or attached thereto and any easements, rights-of-way, and other appurtenants (and all title documents, surveys, assets related construction plans and documents and related real estate files with respect to the Company Owned Real PropertySellers’ operation of the messaging business conducted by Interactive Digital Media GmbH business;
(iv) all assets related to iPass;
(v) all deposits related to the Non-MVNE Business, including all deposits and prepayments held by third parties pursuant to any executory contract or unexpired lease assumed and assigned to CVG which are related to the Non-MVNE Business (excluding deposits related to Contracts that are not Assumed Contracts);
(dvi) all equipment, machinery or other tangible personal property primarily used or held for use in connection with the Acquired Leases, and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate filesSellers’ Non-MVNE Business;
(evii) subject to the timing and process contemplated by the Sale Order, the Contracts, agreements, contract rights, leases of real property, leases of equipment, machinery or other tangible personal property license agreements, customer contracts, purchase and sales orders (if any), financial instruments, royalty agreements, third party guaranties, indemnifications, arrangements and understandings, whether oral or written, to which any Seller is a party (whether or not legally bound thereby) and which relate to the operation of the Non-MVNE Business and which primarily relate to the operation of the Non-MVNE Business and which are designated as Assumed Contracts pursuant to Section 2.3(d) below (collectively, the “CVG Assumed Contracts” and, together with the Circles Assumed Contracts, the “Assumed Contracts”);
(viii) the machineryCVG Purchased Equity Interests;
(ix) all Accounts Receivable related to the CVG Purchased Assets;
(x) all permits necessary for the operation of the Sellers’ Non-MVNE Business, equipmenttransferable to CVG pursuant to their terms and in accordance with applicable Laws;
(xi) all Intellectual Property Assets which relate solely to, computer hardware or are solely used or held for use, in connection with, the Non-MVNE Business, including, but not limited to the wi-fi business of Deviscape;
(other than pin padsxii) all prepaid items and expenses related to the Sellers’ Non-MVNE Business;
(xiii) all books and records including customer or client lists, as files, documentation, records and the related documentation related to the Sellers’ Non-MVNE Business, or CVG Assumed Liabilities, but specifically excluding the books and records set forth in Section 1.2(q2.2(f);
(xiv) all claims, indemnities, warranties, guarantees, refunds, causes of action, rights of recovery, rights of set-off and rights of recoupment of every kind and nature (whether or not known or unknown or contingent or non-contingent) related to the Sellers’ Non-MVNE Business or the CVG Assumed Liabilities (other than those on insurance policies of the Sellers);
(xv) all deposits and prepayments held by third parties pursuant to any executory contract or unexpired lease assumed and assigned to CVG;
(xvi) all other assets, office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes (with combinations and keys)properties, and other personal property owned by rights used in the Company Sellers’ Non-MVNE Business that are not defined below as Excluded Assets and not included in Circles Purchased Assets; and
(xvii) all claims and actions of any Debtor against Affiliates, vendors and third party providers of any Debtor arising under Sections 510, 541, 544, 545, 547, 548, 549, 550, 553 or any 558 of its subsidiaries, and all leases relating to the foregoing, Bankruptcy Code or similar state laws related in each case to the extent exclusively related to CVG Purchased Assets. For the avoidance of doubt, if a Purchased Asset has an Acquired Store or Distribution Center;
(f) all rights, claims or causes of action against third parties relating equal relation to the assetsMVNE Business and Non MVNE Business, properties, business or operations of such Purchased Asset shall constitute a Circles Purchased Asset. To the Acquired Storesextent a Purchased Asset is desired by both Purchasers, the Distribution Centers or other Purchasers will work in good faith to determine which Purchaser shall purchase the Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to, on, or after the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rights, claims or causes of action relate to Assumed Liabilities;
(g) to the extent permitted by Law, (i) all books Asset and records (including all data and other information stored on discs, tapes or other media) of the Company or any of its subsidiaries relating to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall includewhether, to the extent available and permitted by lawpossible, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations license or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect other accommodation may be made to any claim or loss related allow both Purchasers to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Date, to the extent permitted by Law, Purchaser Sub shall provide copies of such transferred records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee;
(h) any cash and cash equivalents in any Acquired Stores (including in cash registers) as of the close of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired Store, as applicable (the “Purchased Cash”);
(i) all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to, on, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities;
(j) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data);
(m) the Intellectual Property owned by the Company and its Affiliates and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property set forth on Section 1.1(m) of the Company Disclosure Schedules (the “Purchased Intellectual Property”);
(n) the Contracts listed on Section 1.1(n) of the Company Disclosure Schedules, which will be assumed by Purchaser Sub (“Assumed Contracts”); and
(o) all leases for the use and occupancy by the regional, divisional or district offices set forth on Section 1.1(o) of the Company Disclosure Schedules (collectively, the “Acquired Regional Offices”) and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereonAsset.
Appears in 1 contract
Purchased Assets. Upon the terms and subject to the conditions of this Agreement, on at the Closing, Parent shall sell, convey, assign and transfer, and shall cause each Asset Seller to sell, convey, assign and transfer, to Buyer all the assets, rights and properties of Parent and its Affiliates, of every kind and description and wherever located, whether tangible or intangible, real, personal or mixed, that (except as otherwise expressly set forth in this Agreement or the Ancillary Agreements) are primarily used in or primarily held for use by the Businesses as of the Closing Date (or not including the applicable Subsequent Closing Date or Distribution Center Closing DateExcluded Assets, the "Purchased Assets"), the Company shall, and shall cause its Affiliates, to sell, transfer, assign, convey and deliver to Purchaser Sub, and Purchaser Sub Buyer shall purchase from the Company and, as applicable, its Affiliates, Purchased Assets free and clear of all Liens Encumbrances other than Permitted Encumbrances (except for Permitted Liensthe avoidance of doubt, all assets, rights and properties of the Transferred Subsidiaries (other than any Excluded Assets) shall remain assets, rights and properties of the Transferred Subsidiaries and not Purchased Assets hereunder). Without limiting the generality of the foregoing, the Purchased Assets shall include the following assets, rights and properties of Parent and its Affiliates as of the Closing Date:
(i) all Sellers', Parent's and its Affiliates' right, title and interest of the Company to Real Property, including, without limitation, leasehold interests, interests in security deposits and its Affiliates, in, to fee simple title in and under all of the assets, properties and rights owned, held or used by the Company and its Affiliates, exclusively relating to or exclusively used in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating Owned Business Real Property, subject only to any Acquired Store or Distribution Center (collectively, the “Purchased Assets”):
(a) all Inventory and supplies of the Company and its Affiliates and the fixed assets and tangible property physically located at the Acquired Stores and the Distribution CentersPermitted Title Encumbrances;
(bii) to the extent transferable, the Permits held by the Company all tangible personal property and its Affiliates;
(c) the Company Owned Real Property together with all buildings, structures, fixtures and improvements located thereon or attached thereto and any easements, rights-of-way, and other appurtenants (and all title documents, surveys, related construction plans and documents and related real estate files with respect to the Company Owned Real Property);
(d) the Acquired Leases, and all subleases, licenses or concessions thereunderinterests therein, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate files;
(e) the machinery, equipment, training materials and equipment, mechanical and spare parts, supplies, owned and leased motor vehicles, mobile telephones, computer hardware equipment, communications equipment, PDA bar code readers, fixtures, trade fixtures, tools, tooling, dyes, cap and component molds, furniture, furnishings, office equipment and supplies, production supplies, other miscellaneous supplies and other tangible property of any kind in each case to the extent primarily used in or primarily held for use by the Businesses;
(iii) the Business Transferred Intellectual Property not held by the Transferred Subsidiaries;
(iv) Registrations primarily related to products currently being manufactured and sold by the Businesses, or primarily related to future products or product lines being developed primarily by the Businesses, in each case to the extent assignable with or without requiring the consent of the issuing Governmental Authority, supported by and including, for such products, future products or product lines primarily related to the Businesses: (A) the original documents, to the extent originals are available, under the possession of Parent or the Asset Sellers (or that are accessible to Parent or the Asset Sellers using commercially reasonable efforts) evidencing such Registrations issued to Parent or the Asset Sellers by a Governmental Authority primarily related to the Businesses; (B) all related Registration applications, clinical research and trial agreements, data results and records of clinical trials and marketing research, all other than pin padsclinical documents required to be kept by Law, all documents required be kept under the FDA Quality System Regulation or any other Law regulating the design or manufacture of medical devices, design history files, technical files, drawings, manufacturing, packaging and labeling specifications, validation documentation, packaging specifications, quality control standards and other documentation, research tools, laboratory notebooks, files and correspondence with regulatory agencies and quality reports and all relevant pricing information and correspondence with Governmental Authorities with respect to such pricing matters; and (C) any and all documentation related to the design, development, manufacture, test, release, distribution, worldwide market registration and clearance or approval, and post market surveillance and history of usage of such products and proposed future products, as well as all quality system documentation primarily related to the Businesses;
(v) all advertising, marketing and promotional materials and all other printed or written materials, including website content, in each case to the extent primarily used in the Businesses;
(vi) except as set forth in Section 1.2(q)Sections 2.01(c) and 2.02(b), office equipmentany Contract and rights thereunder, vehiclesto the extent used in the Businesses;
(A) all inventories of works in process, forklifts, trailers, tractors, furniture, shelving, safes (with combinations semi-finished and keys)finished products, and other personal property owned by inventory of finished products on consignment, in transit or deposited in a warehouse, in each case to the Company or any of its subsidiariesextent primarily held for use in the Businesses, and (B) all leases relating to the foregoingother inventories, including raw materials, stores, replacement and spare parts, packaging materials, operating supplies and inventory on consignment, in transit or deposited in a warehouse, in each case to the extent exclusively related to an Acquired Store or Distribution Centerheld for use in the Businesses;
(fviii) all rightsprepayments, claims or causes of action against third parties relating to the assetssecurity deposits, propertiesrebates, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to, on, or after the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable)refunds and prepaid expenses, in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only case to the extent such rights, claims or causes of action relate related to Assumed Liabilitiesthe Businesses;
(gix) subject to the terms of the Buyer Out-License Agreement and the Seller Out-License Agreement, all unpaid or unsatisfied claims, causes of action, choses in action, rights of recovery and rights of set-off of any kind (including all unsatisfied damages and payments for past, present or future infringement or misappropriation of Business Intellectual Property, the right to recover for past infringements or misappropriations of Business Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Business Intellectual Property, except to the extent permitted by Lawany of the foregoing relate to (x) Excluded Assets or Excluded Liabilities, (iy) all books intercompany receivables between Parent and records (including all data and other information stored on discs, tapes or other media) of the Company or any of its subsidiaries relating Affiliates, or between any Affiliate of Parent and any other Affiliate of Parent, or (z) outside the fields of the Businesses, as to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding Business Licensed Intellectual Property;
(A) all personnel files other than as set forth belowunpaid or unsatisfied income, royalties and payments receivable in respect of any Business Transferred Intellectual Property, and (B) subject in all cases to the terms of the Seller Out-License, all unpaid or unsatisfied income, royalties and payments receivable in respect of any Business Licensed Intellectual Property in the fields of the Businesses, except for any Excluded Assets;
(xi) all Books, Records and Files (other than income and similar Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Storesrelated books, records and files), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available primarily used in, primarily held for use by, or primarily related to, the Purchased Assets, the Businesses or the Business Transferred Intellectual Property and permitted by lawcopies of all Books, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; providedRecords and Files (other than income and similar Tax Returns and related books, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on files), redacted at the records provided, (y) election of Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Date, exclude information to the extent permitted by Law, Purchaser Sub shall provide copies of such transferred records having no relation to the Company at Businesses, that are primarily used in or primarily related to the Company’s request due to any claim Purchased Assets, the Businesses or threatened claim against the Company or its Affiliates by a Business Transferred EmployeeIntellectual Property;
(hxii) all permits, licenses, certifications and approvals from all permitting, licensing, accrediting and certifying agencies, and the rights to all data and records held by such permitting, licensing and certifying agencies, in each case to the extent transferable and primarily used in, or primarily related to, the Businesses other than permits, licenses, certifications and approvals which may be retained by Parent during the periods during which Parent is providing any cash services, and cash equivalents in any Acquired Stores access to which (including in cash registersor replacements for which) as of is contemplated to be provided, under the close of business on Transition Services Agreement for the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for periods provided therein, and following which periods such Acquired Storepermits, as applicable (the “Purchased Cash”)licenses, certifications and approvals shall be transferred to Buyer;
(ixiii) all guaranteescomputer software, data and information, and all related hardware, in each case to the extent primarily used in, or primarily related to, the Businesses, other than that computer software, data and information which may be retained by Parent during the periods during which Parent is providing any services, and access to which (or replacements for which) is contemplated to be provided, under the Transition Services Agreement for the periods provided therein, and following which periods such computer software, data and information (or copies thereof), and all related hardware, shall be transferred to Buyer;
(xiv) all claims under insurance policies and claims or benefits in, to or under any express or implied warranties and indemnities from suppliers of goods or services relating to inventory, goods, supplies or other items sold or delivered to Parent or any Asset Seller prior to the Closing, in each case to the extent related to the ownership or operation of the Purchased Assets prior to, on, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed LiabilitiesBusinesses;
(jxv) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related to the Company’s Wellness+ program relating to customers goodwill of the Acquired Stores Businesses as going concerns (and to the extent transfer is contractually prohibited excluding any goodwill associated with Parent's name or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data);
(m) the Intellectual Property owned by the Company and its Affiliates and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property set forth on Section 1.1(m) of the Company Disclosure Schedules (the “Purchased Intellectual Property”);
(n) the Contracts listed on Section 1.1(n) of the Company Disclosure Schedules, which will be assumed by Purchaser Sub (“Assumed Contracts”Guidant's name); and
(oxvi) all leases for the use and occupancy by the regional, divisional or district offices set forth on Section 1.1(o) rights of the Company Disclosure Schedules (collectively, the “Acquired Regional Offices”) and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company Buyer and its Affiliates and arising under this Agreement, the fixed assets and tangible property physically located thereonAncillary Agreements or from the consummation of the transactions contemplated hereby.
Appears in 1 contract
Purchased Assets. Upon Subject to the terms and subject to the conditions of this AgreementAgreement and except as provided in Section 2.16, on at the Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date)Closing, the Company Seller shall, and shall cause its Affiliatesthe other Seller Entities to, to sell, transfer, assign, transfer and convey and deliver to Purchaser Subor the applicable Purchaser Designee, and Purchaser Sub shall, or shall purchase cause the applicable Purchaser Designee to, purchase, acquire and accept from the Company andSeller Entities, as applicable, its Affiliates, free and clear all of all Liens (except for Permitted Liens) all the Seller Entities’ right, title and interest as of the Company and its Affiliates, in, to and under all of the assets, properties and rights owned, held or used by the Company and its Affiliates, exclusively relating to or exclusively used Closing in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating to any Acquired Store or Distribution Center (collectively, the “Purchased Assets”):
(a) all Inventory and supplies One hundred percent (100%) of the Company and its Affiliates and equity interests (except as forth in Section 3.2 of the fixed assets and tangible property physically located at Seller Disclosure Schedules) (the Acquired Stores and “Purchased Entity Shares”) in each of the Distribution Centersentities listed on Section 2.4(a) of the Seller Disclosure Schedules (each, a “Purchased Entity,” and, collectively, the “Purchased Entities”);
(b) (i) Each Contract set forth on Section 2.4(b) of the Seller Disclosure Schedules; and (ii) subject to Section 2.11(e), any other Contract with a customer, distributor, servicer or supplier of the Business or other third party (for the avoidance of doubt who is not Seller, an Affiliate of Seller or any Representative of Seller or any of its Affiliates) executed prior to the extent transferableClosing or the applicable Deferred Closing Effective Time, as applicable, in each case if such Contract is exclusively or primarily related to, or exclusively or primarily used in, the Permits held by Business (other than in the Company case of this clause (ii), any Intercompany Arrangements and its Affiliatesleases) (collectively, such Contracts or portion of such Contracts, as the case may be, the “Specified Business Contracts”);
(c) (i) The owned real property listed in Section 2.4(c)(i) of the Company Seller Disclosure Schedules (the “Owned Real Property Property”), together with all buildings, structuresimprovements, fixtures and improvements located thereon or attached all appurtenances thereto and any easementsrights in respect thereof, rights-of-wayin each case, subject to the Real Estate Steps Plan, and other appurtenants (and all title documentsii) the leases governing the leased real property listed in Section 2.4(c)(ii) of the Seller Disclosure Schedules (such leased real property, surveysthe “Transferred Leased Property” and, related construction plans and documents and related real estate files together with respect to the Company Owned Real Property, the “Real Property”);
(d) The Intellectual Property primarily related to, or primarily used in, the Acquired Leases, and all subleases, licenses or concessions thereunderBusiness, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate files;
(e) the machinery, equipment, computer hardware (other than pin pads, as set forth such Intellectual Property listed in Section 1.2(q)), office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes (with combinations and keys), and other personal property owned by the Company or any of its subsidiaries, and all leases relating to the foregoing, in each case to the extent exclusively related to an Acquired Store or Distribution Center;
(f) all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to, on, or after the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rights, claims or causes of action relate to Assumed Liabilities;
(g) to the extent permitted by Law, (i) all books and records (including all data and other information stored on discs, tapes or other media2.4(d) of the Company or any of its subsidiaries relating to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers Seller Disclosure Schedules (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Date, to the extent permitted by Law, Purchaser Sub shall provide copies of such transferred records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee;
(h) any cash and cash equivalents in any Acquired Stores (including in cash registers) as of the close of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired Store, as applicable (the “Purchased Cash”);
(i) all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to, on, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities;
(j) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data);
(m) the Intellectual Property owned by the Company and its Affiliates and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property set forth on Section 1.1(m) of the Company Disclosure Schedules (the “Purchased Intellectual Property”);
(ne) All Tangible Personal Property owned, leased or licensed by Seller and its Subsidiaries, and primarily related to, or primarily used in, the Contracts listed on Section 1.1(nBusiness;
(f) Any and all trade receivables and other accounts receivable of the Company Disclosure SchedulesBusiness as of immediately prior to the Closing Effective Time (or, which will be assumed by Purchaser Sub (“Assumed solely with respect to the applicable Deferred Target Business, the applicable Deferred Closing Effective Time), or arising out of the Specified Business Contracts”); and;
(og) Any and all leases rights to any prepaid expenses prepaid by the Business and security deposits (i) primarily related to, or primarily used in, the Business as of immediately prior to the Closing Effective Time or the applicable Deferred Closing Effective Time, as applicable, or (ii) to the extent related to or arising out of the Specified Business Contracts;
(h) Any and all bank accounts solely in the name and for the use benefit of Target Entities;
(i) Any and occupancy all raw materials, work-in-process, finished goods, supplies and other inventories used, or held for use, by the regionalBusiness, divisional or district offices set forth on Section 1.1(oincluding any such raw materials, work-in-process, finished goods, supplies and other inventories being held by (i) customers of the Company Disclosure Schedules Business pursuant to consignment arrangements, (ii) suppliers of the Business under tolling arrangements, or (iii) treated as current assets in the calculation of Working Capital (collectively, the “Acquired Regional OfficesInventory”);
(j) Any and all subleasesgoodwill to the extent related to, licenses or concessions thereunderto the extent associated with, the Business;
(k) Any and all Business Permits primarily related to, or primarily used in, the Business (collectively, the “Transferred Permits”);
(l) Any and all claims, causes of action, defenses and rights of offset or counterclaim, or settlement agreements (in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or noncontingent) at any time arising out of or related to the Business, Purchased Assets or Assumed Liabilities (including (i) all rights and claims under any and all warranties extended by suppliers, vendors, contractors, manufacturers and licensors in favor of Seller, a Target Entity or any of their respective Affiliates in relation to any of the Purchased Assets or the Business and (ii) the right to all security depositsxxx and recover damages for past, present or future infringement or other violation of any Business Intellectual Property), and the right to retain all proceeds and monies therefrom, other amounts than any Retained Claim;
(m) Any and instruments deposited byall documents, on behalf ofinstruments, or for papers, books, records, books of account, files and data (including customer and supplier lists, and repair and performance records), catalogs, brochures, sales literature, promotional materials, certificates and other documents (in each case, other than Tax Records) to the benefit ofextent (x) exclusively related to the Target Entities, the Company Purchased Assets, the Assumed Liabilities or its Affiliates thereunder with respect to which the Company Business and in the possession of Seller or any of its Affiliates is a partyor (y) primarily related to the Business and in the possession of Seller or any of its Affiliates, all related lease documentsother than, construction plans with respect to clause (y), (i) personnel and documents employment records for employees and related real estate filesformer employees who are not Transferred Business Employees, and all supplies (ii) any books, records or other materials that may be located in a facility of the Company Business (including the Transferred Leased Property and the Owned Real Property) to the extent not related to the Business (it being acknowledged that Seller may remove such books, records and other materials from such locations prior to Closing); provided that, with respect to any such books, records or other materials that are Purchased Assets pursuant to this clause (m), the Seller Entities shall be permitted to keep (A) copies of such books, records or other materials to the extent required to demonstrate compliance with applicable Law or pursuant to bona fide internal compliance procedures, (B) copies of such books, records or other materials related to any Excluded Assets and (C) such books, records or other materials in the form of so-called “back-up” electronic tapes in the ordinary course of business;
(n) All Transferred Tax Records; provided that, with respect to any such Transferred Tax Records that are Purchased Assets pursuant to this clause (n), the Seller Entities shall be permitted to keep (A) copies of such books, records or other materials to the extent required to demonstrate compliance with applicable Law or pursuant to bona fide internal compliance procedures, (B) copies of such books, records or other materials related to any Excluded Assets and (C) such books, records or other materials in the form of so-called “back-up” electronic tapes in the ordinary course of business;
(o) All Transferred Benefit Plans and any and all assets, trust agreements or any other funding and administrative Contracts related to the Transferred Benefit Plans;
(p) All Contracts with any Business Independent Contractors, including any Contract with Business Independent Contractors that contains non-competition, non-solicitation, confidential information, intellectual property assignment or any other similar restricted covenants, to the extent permitted to be assigned to or assumed by Purchaser or its Affiliates in accordance with applicable Law (collectively, the “Transferred Business Independent Contractor Agreements”);
(q) Any other Contract with any Transferred Business Employee executed prior to the Closing or the applicable Deferred Closing Effective Time, as applicable, that is limited to any non-competition, non-solicitation, confidential information, intellectual property assignment or any other similar restricted covenants, to the extent permitted to be assigned or assumed by Purchaser or its Affiliates in accordance with applicable Law and the fixed assets terms of such Contract;
(r) Any and tangible property physically located thereon.all insurance policies held solely in the name of the Target Entities to the extent related to the Business and all rights of the Target Entities thereunder; and
(s) All other assets, rights and claims that are exclusively or primarily used, or held exclusively or primarily for use, in the operation of the Business, other than any asset of the type or character described in Section 2.4(a) through Section 2.4
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (GCP Applied Technologies Inc.)
Purchased Assets. Upon Subject to the terms and subject to the conditions of this Agreement, on the Closing Date (or and at the applicable Subsequent Closing Date or Distribution Center Closing Date)Closing, the Company Seller shall, and shall cause its Affiliatesthe other Asset Selling Entities to, to sell, transfer, assign, transfer and convey and deliver to Purchaser SubPurchaser, and Purchaser Sub shall purchase purchase, acquire and accept from the Company andAsset Selling Entities, all of the Seller Entities’ right, title and interest as applicableof the Closing in (i) all of the assets primarily used, its Affiliatesor held primarily for use, free and clear in the operation of all Liens the RLC Ducted Business (except for Permitted Liensto the extent any asset (A) all is a type of asset that is addressed by clause (ii) of this Section 2.4, or (B) is included in the definition of “Excluded Assets”) and (ii) the following assets (together with the assets specified in clause (i), the “Purchased Assets”) (it being understood that Purchaser shall obtain indirect ownership of any assets that are owned, leased, licensed or otherwise held by the Purchased Companies by virtue of Purchaser’s purchase of the Purchased Entity Shares and the Purchased Venture Interests to the extent of the right, title and interest of the each such Purchased Company and its Affiliates, in, to and under all in such assets):
(i) One hundred percent (100%) of the assetsequity interests (the “Purchased Entity Shares”) in each of the entities listed on Section 2.4(a)(i) of the Seller Disclosure Schedules, properties and rights ownedas such schedule may be updated in accordance with Section 5.13 (each, held or used by the Company and its Affiliatesa “Purchased Entity,” and, exclusively relating to or exclusively used in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating to any Acquired Store or Distribution Center (collectively, the “Purchased AssetsEntities”):
); (aii) all Inventory the issued and supplies of the Company and its Affiliates and the fixed assets and tangible property physically located at the Acquired Stores and the Distribution Centers;
(b) to the extent transferable, the Permits outstanding equity interests held by the Asset Selling Entities or any Purchased Company in each of the entities listed on Section 2.4(a)(ii) of the Seller Disclosure Schedules (each, a “Purchased Consolidated Venture” and, together with the Purchased Entities, the “Purchased Controlled Companies”); and its Affiliates;
(ciii) the issued and outstanding equity interests held by the Asset Selling Entities or any Purchased Company Owned Real Property (together with all buildingsthe equity interests referred to in clause (ii), structuresthe “Purchased Venture Interests”) in each of the entities listed on Section 2.4(a)(iii) of the Seller Disclosure Schedules (each, fixtures and improvements located thereon or attached thereto and any easementsa “Purchased Non-Consolidated Venture” and, rights-of-waytogether with the Purchased Consolidated Ventures, and other appurtenants (and all title documents, surveys, related construction plans and documents and related real estate files with respect to the Company Owned Real Property“Purchased Ventures”);
(di) Each Contract executed prior to the Acquired Leasesdate of this Agreement and related exclusively to the RLC Ducted Business, and all subleasesin its entirety, licenses or concessions thereunder(ii) each other Contract executed prior to the date of this Agreement, including those Contracts set forth on Section 2.4(b)(ii) of the right to all security depositsSeller Disclosure Schedules, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder only with respect to which (and preserving the Company or any meaning of) those portions of its Affiliates is a partyit that solely relate to the RLC Ducted Business, subject to Section 2.11(c) and all Acquired Lease documents, related construction plans and documents and related real estate files;
(e) the machinery, equipment, computer hardware (other than pin pads, as set forth in Section 1.2(q)), office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes (with combinations and keys2.11(e), and other personal property owned by (iii) each Contract executed after the Company or any date of its subsidiaries, this Agreement and all leases relating prior to the foregoingClosing, (A) if related exclusively to the RLC Ducted Business, then in its entirety, or (B) if not related exclusively to the RLC Ducted Business, then only with respect to (and preserving the meaning of) those portions of it that solely relate to the RLC Ducted Business, subject to Section 2.11(c) and Section 2.11(e), in each case of clauses (i), (ii) and (iii), other than any intercompany balances and accounts, arrangements, understandings or Contracts to be terminated pursuant to Section 5.6 or Contracts pursuant to which services will be provided by Seller or its Affiliates (other than the Purchased Companies) pursuant to the extent exclusively related to an Acquired Store or Distribution Center;
(f) all rights, claims or causes of action against third parties relating to the assets, properties, business or operations terms of the Acquired StoresTransition Services Agreement (collectively, such Contracts or portion of such Contracts, as the case may be, described by clauses (i) through (iii), the Distribution Centers or other Purchased Assets or “Specified Business Contracts”); provided that Seller may update Section 2.4(b)(ii) of the Seller Disclosure Schedules with written notice to Purchaser and delivery of the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, same no later than five (5) Business Days prior to, on, or after to the Closing Date (and in any event prior to the delivery of the Closing Statement) to reflect any modifications to, or the applicable Subsequent Closing Date additions or the Distribution Center Closingterminations of, as applicable)of Specified Business Contracts, in each case, if arising out after the date of events or transactions occurring, or facts or circumstances existing this Agreement and prior to the Closing Date, only subject to compliance with Section 5.2;
(c) (i) All owned real property listed in Section 2.4(c)(i) of the Seller Disclosure Schedules (such owned real property, the “Transferred Owned Property”), including all buildings, improvements and fixtures thereon and all appurtenances thereto, and (ii) all leases governing the leased real property primarily related to and primarily used in the conduct of the RLC Ducted Business, including the leases governing the leased real property listed in Section 2.4(c)(ii) of the Seller Disclosure Schedules (such leased real property, the “Transferred Leased Property,” and such leases, collectively, the “Transferred Leases”); provided that Seller may update Section 2.4(c)(ii) of the Seller Disclosure Schedules with written notice to Purchaser and delivery of the same no later than five (5) Business Days prior to the Closing Date (and in any event prior to the delivery of the Closing Statement) to reflect any modifications to, or additions or terminations of, Transferred Leases, in each case, after the date of this Agreement and prior to the Closing Date, subject to compliance with Section 5.2;
(d) (i) The Registered Intellectual Property listed in Section 2.4(d) of the Seller Disclosure Schedules, including, for clarity, (A) any reissues or reexaminations of the issued Patents identified therein, (B) any divisions, substitutions, continuations and continuations-in-part of the Patents identified therein, and any Patents claiming priority thereof or that may issue therefrom, (C) any reissues or reexaminations of any Patents that may issue from the pending applications identified therein and (D) any U.S. or foreign counterparts of the Patents identified therein; and (ii) any other Intellectual Property (other than Registered Intellectual Property) owned by Seller or its Affiliates and primarily used or held primarily for use in the operation of the RLC Ducted Business, including all rights of priority and renewals (collectively, the “Transferred IP”); Transferred IP includes Transferred Controls Materials;
(e) The IT Assets listed or described in Section 2.4(e) of the Seller Disclosure Schedules (collectively, the “Transferred IT Assets”);
(f) Any and all Tangible Personal Property located on the premises of the Transferred Leased Property and Transferred Owned Property to the extent such rightsprimarily used, claims or causes held primarily for use, in the operation of action relate to Assumed Liabilitiesthe RLC Ducted Business;
(g) Any and all trade receivables and other accounts receivable (other than from Seller and/or any of its Affiliates) of the RLC Ducted Business as of immediately prior to 11:58 p.m. on the Closing Date to the extent such trade receivables are included in the determination of Closing Ducted Working Capital;
(h) Any and all prepaid expenses and security deposits of the RLC Ducted Business as of immediately prior to 11:58 p.m. on the Closing Date or arising out of the Specified Business Contracts, in each case, solely to the extent (i) related exclusively to the RLC Ducted Business and (ii) in the case of current prepaid expenses and current security deposits included in the determination of Closing Ducted Working Capital;
(i) Any and all Inventory primarily used, or primarily held for use, in the RLC Ducted Business to the extent such Inventory is included in the determination of Closing Ducted Working Capital;
(j) Any and all goodwill, if any, of the RLC Ducted Business;
(k) All Business Permits primarily related to the conduct of the RLC Ducted Business, including the Business Permits listed on Section 2.4(k) of the Seller Disclosure Schedules (to the extent transferable by the Asset Selling Entities) (the “Transferred Permits”);
(l) Except as set forth in Section 5.7, any and all assets related to the Purchased Controlled Company Benefit Plans;
(m) Any and all claims, causes of action, defenses and rights of offset or counterclaim, or settlement agreements (in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent) to the extent primarily related to the operation or conduct of the RLC Ducted Business or the Purchased Assets;
(n) (i) Sole ownership and all originals and copies of all Books and Records that are in the possession or control of any Seller Entity and are exclusively used or held exclusively for use in the operation of the RLC Ducted Business and (ii) co-ownership and one copy in mutually agreed form of any other Books and Records that are in the possession or control of any of the Seller Entities and otherwise to the extent used in, held for use in or related to the operation of the RLC Ducted Business (with each party having the right to use and license others to use same after the Closing Date without the consent of or an accounting to the other party), subject to reasonable redactions or removals for portions to the extent unrelated to the RLC Ducted Business, in each case of clauses (i) and (ii), other than any Books and Records (or portions thereof) (A) that such Seller Entity is required by Law or bona fide records retention policy binding as of the date hereof not to transfer (in such case copies of which, to the extent permitted by LawLaw and such bona fide records retention policy, will be delivered to Purchaser at the Closing), (iB) all books that consist of personnel, medical and employment records for Business Employees and former employees of any Purchased Controlled Company other than such records of Transferred Business Employees, (including all data C) that have been created electronically pursuant to automatic or ordinary course back up, security or disaster recovery systems and other information stored on discswould be unduly burdensome or costly to retrieve, tapes or other media) of the Company or any of its subsidiaries relating except to the assetsextent Purchaser reimburses the Asset Selling Entities for any reasonable and documented out of pocket retrieval costs, properties, business and operations of the Acquired Stores and the Distribution Centers (D) to the extent exclusively relating to the Acquired Stores Retained Businesses, Excluded Assets or Retained Liabilities or (E) that consist of any Tax Returns of Seller or any of its Subsidiaries (other than the Purchased Companies) and any Combined Tax Returns (and Books and Records relating primarily to such Tax Returns); provided that, with respect to any Tax Returns or other Books and Records of the Distribution CentersPurchased Companies that are Purchased Assets pursuant to this Section 2.4(n), Seller or such Subsidiary may be permitted to keep copies of such Tax Returns or other Books and Records as necessary to comply with Law or bona fide records retention policy;
(i) (but excluding To the extent permitted by applicable Law, (A) all personnel files other than as set forth below, insurance policies exclusively insuring the RLC Ducted Business and (B) subject to Section 5.10(b) and except as otherwise provided herein and without duplication to any other claim or recovery, all Tax Returns not relating solely rights to any insurance benefits and proceeds payable under third-party occurrence-based insurance policies of the Acquired Stores and (C) historical financial information except Seller Entities to cover any claims for Pre-Closing Occurrences with an alleged date of loss prior to Closing, whether made prior to or following the extent exclusively relating to the Acquired Stores)Closing, and (ii) all property and casualty Insurance Proceeds received or receivable in connection with the damage or complete destruction of any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information Purchased Assets or assets that would have been included in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Date, to the extent permitted by Law, Purchaser Sub shall provide copies of such transferred records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee;
(h) any cash and cash equivalents in any Acquired Stores (including in cash registers) as of the close of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired Store, as applicable (the “Purchased Cash”);
(i) all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to, on, but for such damage or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable)complete destruction, in each case, if net of any deductible and the cost of repair or replacement of such assets paid or incurred by, and any losses resulting from such damage or destruction incurred by, any of the Seller Entities prior to the Closing, and related administrative costs;
(p) All rights and claims under any and all transferable warranties extended by suppliers, vendors, contractors, manufacturers and licensors, and transferable rights to refunds or rebates, in each case, solely to the extent related to the ownership RLC Ducted Business or operation to the extent related to any of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed LiabilitiesAssets;
(jq) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to To the extent permitted by applicable Law, all transferable collective bargaining, trade union, works council and other similar Contracts exclusively covering the Business Employees; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data);and
(mr) the Intellectual Property owned by the Company and its Affiliates and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property All other assets set forth on Section 1.1(m2.4(r) of the Company Disclosure Schedules (the “Purchased Intellectual Property”);
(n) the Contracts listed on Section 1.1(n) of the Company Seller Disclosure Schedules, which will be assumed by Purchaser Sub (“Assumed Contracts”); and
(o) all leases for the use and occupancy by the regional, divisional or district offices set forth on Section 1.1(o) of the Company Disclosure Schedules (collectively, the “Acquired Regional Offices”) and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereon.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Johnson Controls International PLC)
Purchased Assets. Upon Pursuant to the terms and subject to the conditions of set forth in this Agreement, on the Closing Date (or herein below provided for but effective as of the applicable Subsequent Closing Date or Distribution Center Closing Effective Date), the Company shall, and shall cause its Affiliates, Seller hereby agrees to sell, grant, transfer, assignconvey, convey assign and deliver to Purchaser SubBuyer, and Purchaser Sub shall Buyer agrees to purchase and acquire from the Company andSeller, as applicable, its Affiliates, free and clear of all Liens (except for Permitted Liens) all right, title and interest of the Company and its Affiliates, in, to and under all of the assetsproperties, properties assets and rights owned, held used, acquired for use, or used by arising or existing in connection with the Company Business, whether tangible or intangible, and its Affiliateswhether or not recorded on Seller’s books and records, exclusively relating except for and excluding the Retained Assets provided for in Section 1.2 below (all the foregoing being collectively referred to or exclusively used in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating to any Acquired Store or Distribution Center (collectively, as the “Purchased Assets”):). The Purchased Assets shall include, but not be limited to, the following:
(aA) all Inventory All rights of Seller under its occupancy leases (the “Facilities Leases”) covering (y) the facilities at 00 Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx (the “Perimeter Center Lease”), and supplies (z) the facilities at Newmarket Center, 0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx (the “Newmarket Center Lease” and, together with the Perimeter Center Lease, the “Leased Premises”), a true and complete copy of the Company and its Affiliates and the fixed assets and tangible property physically located Facilities Leases being included at the Acquired Stores and the Distribution CentersSchedule 1.1(A) attached hereto;
(bB) to All of Seller’s (x) vehicles used in connection with the extent transferableconduct of the Business (“Vehicles”), (y) furniture, furnishings, fixtures, equipment, machinery, trade fixtures, leasehold improvements, computers, computer discs, telephone systems and security systems (“Equipment”), and (z) supplies, training and course materials, computer training kits and manuals, catalogs, advertising copy and other properties of a similar type used or held for use in the conduct of the Business (“Inventory” and, together with the Vehicles and Equipment, whether owned or leased, the Permits held by “Tangible Personal Property”), a listing of all of which is included at Schedule 1.1(B) attached hereto (which Schedule indicates whether the Company Vehicles and its Affiliates;
(cEquipment are owned or leased and, if leased, includes a full and complete copy of the lease or other agreement(s) governing the Company Owned Real Property together with all buildings, structures, fixtures and improvements located thereon or attached thereto and any easements, rights-of-way, and other appurtenants (and all title documents, surveys, related construction plans and documents and related real estate files with respect to the Company Owned Real Propertysame);
(dC) the Acquired LeasesAll of Seller’s (u) telephone and facsimile numbers, and all subleases, licenses or concessions thereunder, including the right to all security deposits, (v) permits and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate files;
(e) the machinery, equipment, computer hardware (other than pin pads, as set forth in Section 1.2(q)), office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes (with combinations and keys), and other personal property owned by the Company or any of its subsidiaries, and all leases relating governmental authorizations pertaining to the foregoingBusiness, in each case to the extent exclusively related to an Acquired Store or Distribution Center;
(f) all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to, on, or after the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rightsauthorizations may legally be assigned (“Governmental Permits”), claims (w) goodwill with customers, vendors or causes of action relate to Assumed Liabilities;
(g) prospective customers, and all customer lists, relating to the extent permitted by Lawconduct of the Business (“Goodwill”), (x) security or similar deposits relating to the Business including, but not limited to, the security deposits made under the Newmarket Center Lease, but (i) all books and records (including all data and other information stored on discs, tapes such shall exclude security deposits under the Cisco Equipment Lease as defined in Section 1.2(E) or other media) under any lease or agreement not comprising a part of the Company or any of its subsidiaries relating to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores)Assigned Contracts, and (ii) any Buyer shall repay to Seller the security deposits released and all medical recordspaid to Buyer, billing recordsas same occurs, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records under the Perimeter Center Lease (the information in this clause (ii“Deposits”), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent prepaid advertising (inclusive of yellow page advertising), prepaid expenses and Purchaser Sub shall indemnify and hold other prepayments relating to the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use conduct of the records transferred in accordance herewith Business (“Prepayments”), and (z) following the Closing Date, all other intangible assets relating to the extent permitted by LawBusiness or any of the Purchased Assets (the foregoing being collectively called the “Intangible Personal Property”), Purchaser Sub shall provide copies a listing of such transferred records to the Company all of which is included at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred EmployeeSchedule 1.1(C) attached hereto;
(hD) any cash and cash equivalents in any Acquired Stores All of Seller’s software (including rights under Seller’s software licenses), including SAGE accounting software, and other software used in cash registers) as the conduct of the close Business (“Software”), but excluding the CMS software otherwise provided for in the Franchise Agreement (as defined in Section 3.5(B)), a listing of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired StoreSoftware being included at Schedule 1.1(D) attached hereto (and, as applicable (to each, identifying whether such is owned by Seller or licensed for use by Seller and, if licensed, the “Purchased Cash”name of the licensor and material terms governing Seller’s right to use same in connection with the Business);
(iE) All of Seller’s accounts and notes receivable, and other rights to receive payment, from customers, employees or others arising from the conduct of the Business (“Receivables”), a listing of all guaranteesof which (showing, warranties as to each, the name of the account debtor, the amount owed and indemnities related an aging schedule thereof) is included at Schedule 1.1(E) attached hereto;
(F) Except as provided in Section 1.2(E), all rights of Seller under any agreements or contracts (“Assigned Contracts”) which relate to or arise from the ownership or operation of the Purchased Assets prior Business and are accepted by the Buyer, including any thereof with customers or prospective customers which benefit the Business from and after the Effective Date, including, but not limited to, oncomputer training center agreements and, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closingfurther, as applicable), in each case, if related including all rights to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities;
(j) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related to the Company’s Wellness+ program relating to receive payment from customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store for services to be retained by performed and invoiced after the Company, the Company may retain a copy of such data);
(m) the Intellectual Property owned by the Company and its Affiliates and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property set forth on Section 1.1(m) of the Company Disclosure Schedules (the “Purchased Intellectual Property”);
(n) the Contracts listed on Section 1.1(n) of the Company Disclosure Schedules, which will be assumed by Purchaser Sub Effective Date (“Assumed Customer Contracts”), including without limitation the right to payment with regard to coupon sales and redemptions, PC Club sales, corporate technical club sales or applications, and future training classes, a listing of all of which Assigned Contracts is included at Schedule 1.1(F) attached hereto; and
(oG) all leases for the use Seller’s book and occupancy by the regionalrecords, divisional or district offices set forth on Section 1.1(o) books of account, files, invoices, accounting records, and correspondence relating to any of the Company Disclosure Schedules foregoing (collectively, the “Acquired Regional OfficesRecords”) and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereon).
Appears in 1 contract
Samples: Asset Purchase Agreement (New Horizons Worldwide Inc)
Purchased Assets. Upon On the terms and subject to the conditions of this Agreement, on at the Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date)Closing, the Company shall, and Seller shall cause its Affiliates, to sell, transfer, assign, transfer and convey and deliver to Purchaser SubPurchaser, and Purchaser Sub shall purchase and acquire from the Company and, as applicable, its Affiliates, free and clear Seller all of all Liens (except for Permitted Liens) all Seller’s right, title and interest as of the Company and its Affiliates, in, to and under all of the assets, properties and rights owned, held or used by the Company and its Affiliates, exclusively relating to or exclusively used Closing in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating to any Acquired Store or Distribution Center (collectively, the “Purchased Assets”):
(a) all Inventory and supplies Subject to the terms of the Company Amended Final Judgment, (i) each Contract that is exclusively related to the Business (other than, for the avoidance of doubt, leases of real property), and its Affiliates (ii) to the extent of and subject to Section 2.12(e), those portions of Shared Contracts to the fixed assets and tangible property physically located at extent related to the Acquired Stores and Business (collectively, such Contracts or portions of Contracts, the Distribution Centers;
“Business Contracts”); (b) the Transferred Intellectual Property, including (i) the right to seek and obtain damages for the infringement of any Transferred Intellectual Property (other than with respect to Retained Claims), and (ii) in the case of Marks that are included in the Transferred Intellectual Property, the goodwill of the Business appurtenant to such Marks; (c) any and all Tangible Personal Property (i) that is primarily related to the Business or (ii) that was acquired in the CMI Acquisition that are used to operate and/or manage the Xxxxxxx Facility; (d) any and all Information Technology primarily related to the Business; (e) the Transferred Technology, including (other than with respect to Retained Claims) the right to seek and obtain damages for the infringement of any Transferred Intellectual Property; (f) to the extent transferable, any and all Permits primarily related to the Permits held by Business (collectively, the Company “Transferred Permits”); (g) all Inventory; (h) any and its Affiliates;
all claims, causes of action, defenses and rights of offset or counterclaims (cin any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent) to the Company extent arising out of the Business Contracts or Transferred Owned Real Property Leases, other than any Retained Claims; (i) all land, together with all buildings, structures, improvements and fixtures and improvements located thereon or attached thereto and any easements, rights-of-waylisted on Section 2.4(i) of the Seller Disclosure Schedules, and all easements and other appurtenants rights and interests appurtenant thereto (the “Transferred Owned Real Property”), together with the leases, licenses or other agreements listed on Section 2.4(i) of the Seller Disclosure Schedules pursuant to which Seller conveys or grants to any Person a leasehold estate in, or the right to use or occupy, the Transferred Owned Real Property or portion thereof (the “Transferred Owned Real Property Leases”); (j) copies of the Business Books and all title documentsRecords; provided that, surveys, related construction plans and documents and related real estate files with respect to the Company Owned Real Property);
(d) the Acquired Leasesany such Business Books and Records, and all subleases, licenses or concessions thereunder, including the right Seller shall be permitted to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate files;
(e) the machinery, equipment, computer hardware (other than pin pads, as set forth in Section 1.2(q)), office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes (with combinations and keys), and other personal property owned by the Company or any of its subsidiaries, and all leases relating to the foregoing, in each case to the extent exclusively related to an Acquired Store or Distribution Center;
(f) all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to, on, or after the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rights, claims or causes of action relate to Assumed Liabilities;
(g) to the extent permitted by Law, (i) all books retain copies of such Business Books and records (including all data and other information stored on discs, tapes or other media) of the Company or any of its subsidiaries relating to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time Records to the extent required by to comply with applicable Law and stored or pursuant to internal compliance procedures or retention policies (including until the expiration of the applicable statute of limitations in the Duplicate IT System and electronically available if not on the Duplicate IT Systemrespect of any Taxes, including any extensions thereof); provided, that the Company shall be entitled to (ii) retain a copy copies of Company Rx Data such Business Books and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, Records to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company related to Seller’s and its Affiliates make no representations or warranties regarding Subsidiaries’ obligations under the accuracy or completeness Transaction Documents; (iii) retain copies of such records Business Books and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Date, Records to the extent permitted by Law, Purchaser Sub shall provide copies of such transferred records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee;
(h) any cash and cash equivalents in any Acquired Stores (including in cash registers) as of the close of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired Store, as applicable (the “Purchased Cash”);
(i) all guarantees, warranties and indemnities not exclusively related to the ownership or operation Business; (iv) retain such Business Books and Records in the form of the Purchased Assets prior to, on, or following the Closing so-called “backup” electronic tapes; and (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities;
(jv) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data);
(m) the Intellectual Property owned by the Company and its Affiliates and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property set forth on Section 1.1(m) of the Company Disclosure Schedules (the “Purchased Intellectual Property”);
(n) the Contracts listed on Section 1.1(n) of the Company Disclosure Schedules, which will be assumed by Purchaser Sub (“Assumed Contracts”); and
(o) all leases for the use and occupancy by the regional, divisional or district offices set forth on Section 1.1(o) of the Company Disclosure Schedules (collectively, the “Acquired Regional Offices”) and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereon.redact those portions
Appears in 1 contract
Purchased Assets. Upon the terms and subject to the conditions of this Agreement, on and subject to the Closing Date exclusions set forth in Section 2.03, at the Closing, Seller shall sell, convey, transfer and assign (or cause to be sold, conveyed, transferred and assigned) to Buyer, and Buyer shall purchase, acquire and accept from Seller (either directly or indirectly through the applicable Subsequent Closing Date or Distribution Center Closing Datesale of Shares pursuant to Section 2.01), the Company shall, all of Seller’s and shall cause its Affiliates, to sell, transfer, assign, convey and deliver to Purchaser Sub, and Purchaser Sub shall purchase from the Company and, as applicable, its Affiliates, free and clear of all Liens (except for Permitted Liens) all Subsidiaries’ right, title and interest of the Company and its Affiliates, in, to and under all of the following assets, properties and rights owned, held or used by as the Company and its Affiliates, exclusively relating to or exclusively used in any Acquired Store or Distribution Center, including the following assets same shall exist immediately prior to the extent exclusively relating to any Acquired Store or Distribution Center Closing (collectively, the “Purchased Assets”):); provided that, for the avoidance of doubt, any Purchased Assets then held by a Purchased Company shall be transferred pursuant to Section 2.01 and not this Section 2.02:
(a) all Inventory and supplies Cash of the Company and its Affiliates and Business (the fixed assets and tangible property physically located at the Acquired Stores and the Distribution Centers“Business Cash”);
(b) all real property and leases of, and other interests in, real property that are Primarily Related to the extent transferableBusiness, in each case together with all buildings, fixtures and improvements erected thereon (the Permits held by the Company and its Affiliates“Business Real Property”);
(c) the Company Owned Real Property together with all buildingspersonal property and interests therein, structuresincluding machinery, fixtures equipment, furniture, office equipment, communications equipment, vehicles, storage tanks, spare and improvements located thereon or attached thereto and any easementsreplacement parts, rights-of-way, fuel and other appurtenants (and all title documentstangible property, surveys, related construction plans and documents and related real estate files with respect Primarily Related to the Company Owned Real Property)Business;
(d) the Acquired Leases, and all subleases, licenses or concessions thereunderinventory, including the right to all security depositsraw materials, works-in-process, finished goods and supplies, and other amounts and instruments deposited by, on behalf of, or for current assets that are Primarily Related to the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate filesBusiness;
(e) the machineryall rights, equipment, computer hardware interests or claims under all (i) Contracts (other than pin padsIT Software Contracts and Contracts with respect to Intellectual Property Rights) that are Primarily Related to the Business, other than as set forth in Section 1.2(q2.02(e)(i) of the Disclosure Schedule, (ii) Business IT Software Contracts, (iii) Business IP Contracts (collectively, the “Business Contracts”)), office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes (with combinations and keys), and other personal property owned by the Company or any of its subsidiaries, and all leases relating to the foregoing, in each case to the extent exclusively related to an Acquired Store or Distribution Center;
(f) all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to, on, or after the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rights, claims or causes of action relate to Assumed LiabilitiesOwned Business Intellectual Property Rights;
(g) all Business IT Assets;
(h) all transferable licenses, permits or other governmental authorizations that are Primarily Related to the Business;
(i) except as provided in Section 7.05(c), all books, records, files and papers, whether in hard copy or computer format, to the extent permitted by Lawrelated to the Business and all Tax Returns (or portions thereof), (i) all Tax reports and Tax books and records (including all data and other information stored on discs, tapes related to Taxes or other media) of the Company or any of its subsidiaries relating to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating that relate solely to the Acquired Stores Purchased Companies, the Business or the Purchased Assets (collectively, the “Business Records”); provided that (x) Seller Group Returns and (C) historical financial information except to the extent exclusively relating to the Acquired Stores)Tax Returns, and (ii) any Tax books and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating related to customers Taxes of the Acquired Stores Seller Group shall be Excluded Assets, (which shall in any event include no less than twenty four (24y) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company Seller shall be entitled to retain a copy of Company Rx Data any and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith all Business Records and (z) following the Closing DateSeller shall only be required to deliver such books, records, files and papers (whether electronic or otherwise) to the extent permitted by Applicable Law, Purchaser Sub and Seller shall not be required to deliver to Buyer any books, records, files or papers that are not reasonably practicable to identify and extract, but shall provide copies of access to such transferred records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee;
(h) any cash materials in accordance with Applicable Law and cash equivalents in any Acquired Stores (including in cash registers) as of the close of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired Store, as applicable (the “Purchased Cash”);
(i) all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to, on, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed LiabilitiesSection 5.02;
(j) all goodwill associated with the exclusive Business, together with the right to use all telephone numbers and facsimile numbersrepresent to third parties that Buyer is the successor to the Business;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar all Tax stamps (whether affixed Attributes allocated to a product or not) or rolls of such Tax stamps located in any Distribution CenterPurchased Company pursuant to Section 8.03(a);
(l) all Tax refunds or credits in lieu of refunds (including, in the case of any refund actually received, any interest thereon actually received from a Taxing Authority) with respect to the extent transfer is not contractually prohibited any Tax or prohibited by Law, the historical customer data related Tax Attribute allocated to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited Buyer under Section 8.02 or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data)Section 8.03;
(m) all sales and promotional literature, customer lists, sales databases and other sales-related materials to the Intellectual Property owned by the Company and its Affiliates and exclusively extent related to the Business, which, for the avoidance of doubt, if any Acquired Store or Distribution Centersuch material contains information related to the Business and the Retained Business, including Intellectual Property set forth on Section 1.1(m) of only such portion that is related to the Company Disclosure Schedules (the “Business shall be Purchased Intellectual Property”)Assets;
(n) all credits, prepaid expenses, rebates, deferred charges, advance payments, security deposits and other deposits or amounts held as surety by third Persons and prepaid items, in each case to the Contracts listed extent related to the Business, which, for the avoidance of doubt, if any such amounts are related to the Business and the Retained Business, only such portion that is related to the Business shall be Purchased Assets;
(o) to the extent transferrable, all third-party warranties, indemnities and guarantees Primarily Related to the Business (other than Seller’s and its Affiliates’ rights under the Transaction Documents);
(p) the insurance policies set forth on Section 1.1(n2.02(p) of the Disclosure Schedule;
(q) all assets relating to a Company Disclosure Schedules, which will be Plan or any portion of a Seller Plan assumed by Purchaser Sub (“Assumed Contracts”)Buyer in the transactions contemplated hereby; and
(or) all leases for other assets, properties and rights of a type not expressly covered in this Section 2.02 that are Primarily Related to the use and occupancy by the regional, divisional or district offices set forth on Section 1.1(o) of the Company Disclosure Schedules (collectively, the “Acquired Regional Offices”) and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereonBusiness.
Appears in 1 contract
Purchased Assets. Upon Subject to the terms and subject to the conditions of this Agreement, on at the Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date)Closing, the Company Seller shall, and shall cause its Affiliatesthe other Seller Entities to, to sell, transfer, assign, transfer and convey and deliver to Purchaser Subor the applicable Purchaser Designee, and Purchaser Sub shall, or shall purchase cause the applicable Purchaser Designee to, purchase, acquire and accept from the Company andSeller Entities, as applicable, its Affiliates, free and clear all of all Liens (except for Permitted Liens) all the Seller Entities’ right, title and interest as of the Company and its Affiliates, in, to and under all of the assets, properties and rights owned, held or used by the Company and its Affiliates, exclusively relating to or exclusively used Closing in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating to any Acquired Store or Distribution Center (collectively, the “Purchased Assets”):
(a) all Inventory and supplies One hundred percent (100%) of the Company and its Affiliates and equity interests (except as forth in Section 3.2 of the fixed assets and tangible property physically located at Seller Disclosure Schedules) (the Acquired Stores and “Purchased Entity Shares”) in each of the Distribution Centersentities listed on Section 2.4(a) of the Seller Disclosure Schedules (each, a “Purchased Entity,” and, collectively, the “Purchased Entities”);
(b) (i) Each Contract set forth on Section 2.4(b) of the Seller Disclosure Schedules; and (ii) subject to Section 2.11(e), any other Contract with a customer, distributor, servicer or supplier of the Business or other third party (for the avoidance of doubt who is not Seller, an Affiliate of Seller or any Representative of Seller or any of its Affiliates) executed prior to the extent transferableClosing if such Contract is exclusively or primarily related to, or exclusively or primarily used in, the Permits held by Business (other than in the Company case of this clause (ii), any Intercompany Arrangements and its Affiliatesleases) (collectively, such Contracts or portion of such Contracts, as the case may be, the “Specified Business Contracts”);
(c) (i) The owned real property listed in Section 2.4(c)(i) of the Company Seller Disclosure Schedules (the “Owned Real Property Property”), together with all buildings, structuresimprovements, fixtures and improvements located thereon or attached all appurtenances thereto and any easementsrights in respect thereof, rights-of-wayin each case, subject to the Real Estate Steps Plan, and other appurtenants (and all title documentsii) the leases governing the leased real property listed in Section 2.4(c)(ii) of the Seller Disclosure Schedules (such leased real property, surveysthe “Transferred Leased Property” and, related construction plans and documents and related real estate files together with respect to the Company Owned Real Property, the “Real Property”);
(d) The Intellectual Property primarily related to, or primarily used in, the Acquired Leases, and all subleases, licenses or concessions thereunderBusiness, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate files;
(e) the machinery, equipment, computer hardware (other than pin pads, as set forth such Intellectual Property listed in Section 1.2(q)), office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes (with combinations and keys), and other personal property owned by the Company or any of its subsidiaries, and all leases relating to the foregoing, in each case to the extent exclusively related to an Acquired Store or Distribution Center;
(f) all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to, on, or after the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rights, claims or causes of action relate to Assumed Liabilities;
(g) to the extent permitted by Law, (i) all books and records (including all data and other information stored on discs, tapes or other media2.4(d) of the Company or any of its subsidiaries relating to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers Seller Disclosure Schedules (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Date, to the extent permitted by Law, Purchaser Sub shall provide copies of such transferred records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee;
(h) any cash and cash equivalents in any Acquired Stores (including in cash registers) as of the close of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired Store, as applicable (the “Purchased Cash”);
(i) all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to, on, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities;
(j) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data);
(m) the Intellectual Property owned by the Company and its Affiliates and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property set forth on Section 1.1(m) of the Company Disclosure Schedules (the “Purchased Intellectual Property”);
(ne) All Tangible Personal Property owned, leased or licensed by Seller and its Subsidiaries, and primarily related to, or primarily used in, the Contracts listed on Section 1.1(nBusiness;
(f) Any and all trade receivables and other accounts receivable of the Company Disclosure Schedules, which will be assumed by Purchaser Sub (“Assumed Business as of immediately prior to the Closing or arising out of the Specified Business Contracts”); and;
(og) Any and all leases rights to any prepaid expenses prepaid by the Business and security deposits (i) primarily related to, or primarily used in, the Business as of immediately prior to the Closing or (ii) to the extent related to or arising out of the Specified Business Contracts;
(h) Any and all bank accounts solely in the name and for the use benefit of Target Entities;
(i) Any and occupancy all raw materials, work-in-process, finished goods, supplies and other inventories used, or held for use, by the regionalBusiness, divisional or district offices set forth on Section 1.1(oincluding any such raw materials, work-in-process, finished goods, supplies and other inventories being held by (i) customers of the Company Disclosure Schedules Business pursuant to consignment arrangements, (ii) suppliers of the Business under tolling arrangements, or (iii) treated as current assets in the calculation of Working Capital (collectively, the “Acquired Regional OfficesInventory”);
(j) Any and all subleasesgoodwill to the extent related to, licenses or concessions thereunderto the extent associated with, the Business;
(k) Any and all Business Permits primarily related to, or primarily used in, the Business (collectively, the “Transferred Permits”);
(l) Any and all claims, causes of action, defenses and rights of offset or counterclaim, or settlement agreements (in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or noncontingent) at any time arising out of or related to the Business, Purchased Assets or Assumed Liabilities (including (i) all rights and claims under any and all warranties extended by suppliers, vendors, contractors, manufacturers and licensors in favor of Seller, a Target Entity or any of their respective Affiliates in relation to any of the Purchased Assets or the Business and (ii) the right to all security depositsxxx and recover damages for past, present or future infringement or other violation of any Business Intellectual Property), and the right to retain all proceeds and monies therefrom, other amounts than any Retained Claim;
(m) Any and instruments deposited byall documents, on behalf ofinstruments, or for papers, books, records, books of account, files and data (including customer and supplier lists, and repair and performance records), catalogs, brochures, sales literature, promotional materials, certificates and other documents (in each case, other than Tax Records) to the benefit ofextent (x) exclusively related to the Target Entities, the Company Purchased Assets, the Assumed Liabilities or its Affiliates thereunder with respect to which the Company Business and in the possession of Seller or any of its Affiliates is a partyor (y) primarily related to the Business and in the possession of Seller or any of its Affiliates, all related lease documentsother than, construction plans with respect to clause (y), (i) personnel and documents employment records for employees and related real estate filesformer employees who are not Transferred Business Employees, and all supplies (ii) any books, records or other materials that may be located in a facility of the Company Business (including the Transferred Leased Property and the Owned Real Property) to the extent not related to the Business (it being acknowledged that Seller may remove such books, records and other materials from such locations prior to Closing); provided that, with respect to any such books, records or other materials that are Purchased Assets pursuant to this clause (m), the Seller Entities shall be permitted to keep (A) copies of such books, records or other materials to the extent required to demonstrate compliance with applicable Law or pursuant to bona fide internal compliance procedures, (B) copies of such books, records or other materials related to any Excluded Assets and (C) such books, records or other materials in the form of so-called “back-up” electronic tapes in the ordinary course of business;
(n) All Transferred Tax Records; provided that, with respect to any such Transferred Tax Records that are Purchased Assets pursuant to this clause (n), the Seller Entities shall be permitted to keep (A) copies of such books, records or other materials to the extent required to demonstrate compliance with applicable Law or pursuant to bona fide internal compliance procedures, (B) copies of such books, records or other materials related to any Excluded Assets and (C) such books, records or other materials in the form of so-called “back-up” electronic tapes in the ordinary course of business;
(o) All Transferred Benefit Plans and any and all assets, trust agreements or any other funding and administrative Contracts related to the Transferred Benefit Plans;
(p) All Contracts with any Business Independent Contractors, including any Contract with Business Independent Contractors that contains non-competition, non-solicitation, confidential information, intellectual property assignment or any other similar restricted covenants, to the extent permitted to be assigned to or assumed by Purchaser or its Affiliates in accordance with applicable Law (collectively, the “Transferred Business Independent Contractor Agreements”);
(q) Any other Contract with any Transferred Business Employee executed prior to the Closing that is limited to any non-competition, non-solicitation, confidential information, intellectual property assignment or any other similar restricted covenants, to the extent permitted to be assigned or assumed by Purchaser or its Affiliates in accordance with applicable Law and the fixed assets terms of such Contract;
(r) Any and tangible property physically located thereon.all insurance policies held solely in the name of the Target Entities to the extent related to the Business and all rights of the Target Entities thereunder; and
(s) All other assets, rights and claims that are exclusively or primarily used, or held exclusively or primarily for use, in the operation of the Business, other than any asset of the type or character described in Section 2.4(a) through Section 2.4
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (GCP Applied Technologies Inc.)
Purchased Assets. Upon Subject to the terms and subject to the conditions of this Agreement, on the Closing Date (or and at the applicable Subsequent Closing Date or Distribution Center Closing Date)Closing, the Company Seller shall, and shall cause its Affiliatesthe other Seller Entities to, to sell, transfer, assign, transfer and convey and deliver to Purchaser Subthe Designated Purchasers, and Purchaser Sub the Designated Purchasers shall purchase purchase, acquire and accept from the Company and, as applicable, its AffiliatesSeller Entities, free and clear of all Liens (except for Permitted Liens) Encumbrances, all of the Seller Entities’ right, title and interest as of the Company and its Affiliates, in, to and under all of the assets, properties and rights owned, held or used by the Company and its Affiliates, exclusively relating to or exclusively used Closing in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating to any Acquired Store or Distribution Center (collectively, the “Purchased Assets”):
(a) all Inventory and supplies (i) Each Contract to which Seller or any other Seller Entity is a party that is exclusively related to the Business (other than the Contracts set forth on Section 2.5(b) of the Company Seller Disclosure Schedules) or set forth on Section 2.4(a)(i) of the Seller Disclosure Schedules and its Affiliates (ii) subject to Section 2.11, those portions, and only those portions (and preserving the fixed assets and tangible property physically located at meaning thereof), of any Shared Contract to which Seller or any other Seller Entity is a party to the Acquired Stores and extent related to the Distribution CentersBusiness (collectively, such Contracts or portion of such Contracts, as the case may be, the “Specified Business Contracts”);
(b) to Any and all Intellectual Property (i) primarily used, or held primarily for use, in the extent transferableoperation of the Business or (ii) set forth on Section 2.4(b)(ii) of the Seller Disclosure Schedules (the “Business Intellectual Property”), in each case other than the Permits held by names and Marks identified on Section 1.1(a)(i) and Section 2.5(d) of the Company and its AffiliatesSeller Disclosure Schedules;
(c) the Company Owned Real Property together with all buildings, structures, fixtures and improvements located thereon or attached thereto and any easements, rights-of-way, and other appurtenants (Any and all title documentsTangible Personal Property primarily used, surveysor held primarily for use, related construction plans and documents and related real estate files with respect to in the Company Owned Real operation of the Business (the “Transferred Tangible Personal Property”);
(d) the Acquired Leases, Any and all subleases, licenses or concessions thereunder, including the right to all security deposits, accounts receivable and other amounts and instruments deposited bycurrent assets (including prepaid expenses) of the Business as of immediately prior to the Closing, on behalf of, or for other than Cash Amounts (the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate files“Business Current Assets”);
(e) the machineryAny and all raw materials (including all bulk active pharmaceutical ingredients, equipmentconstituent substances, computer hardware materials, biomaterials (other than pin padsincluding study tissues, plasma, serum, and slides, drug substance and drug product, chemical compounds synthetized in relevant medicinal chemistry series and related records, reagents, cell lines, and standards), stores and supplies, as well as any trade and sample inventory), works-in-process, finished Products and other finished goods, supplies, Packaging Materials, operating supplies and inventory on consignment, in transit or deposited in a warehouse, and other inventories in each case primarily used, or held primarily for use, by the Business (collectively, the “Transferred Inventory”);
(f) Any and all Permits, including Product Registrations, primarily related to or used for the Business or otherwise primarily related to research or development of the Products;
(i) All Data to the extent related to any Product Registrations included in the Purchased Assets, (ii) all pre-clinical data and information, completed clinical and nonclinical reports (together with raw data sets associated with such reports) to the extent related to clinical trials of the Business of which Seller or its Subsidiaries is a sponsor, (iii) all trial master files from sponsors and contract research organizations to the extent related to clinical trials of the Business which Seller or its Subsidiaries is a sponsor, (iv) the clinical database and associated protocol of transfer for each clinical trial of the Business which Seller or its Subsidiaries is a sponsor, including statistical database, biobanking database and any samplings database from vendors, (v) copies of the approved label components with respect to the Products, (vi) all labeling decision documents with respect to the Products, (vii) the safety database for each Product, (viii) all reports and raw data pertaining to any Adverse Experience, (ix) any other written notices, communications or other correspondence between Seller or any of its Affiliates, on the one hand, and any Governmental Entity, on the other hand, to the extent relating to the Products, (x) all dossiers submitted by any Seller Entity to any Governmental Entities relating to in vitro diagnostics or other devices, including Premarket Approval (PMA) Breakthrough Device Programs and Investigational Device Exemptions, to the extent related to the Products, and (xi) all Data, dossiers, and approvals to the extent relating to pediatric development submitted to any Governmental Entities for the Products, including Pediatric Investigation Plans (PIP), Pediatric Study Plans (PSP) and Proposed Pediatric Study Requests (PPSR); in the case of clauses (i) through (xi), in the format submitted to the applicable Governmental Entity (if applicable) or any other format agreed upon by the Parties in the Transition Services Agreement, in each case that would not pose undue burden or expense for Purchaser to access and transfer to Purchaser’s systems; provided, however, with respect to any such Data, information or other materials that are Purchased Assets pursuant to this clause (g) (A) the Seller Entities shall be permitted to keep (1) copies of Data, information or other materials to the extent required to demonstrate compliance with applicable Law or pursuant to internal compliance procedures, (2) copies of such Data, information or other materials to the extent they are relevant to any Excluded Assets, Retained Liabilities or the Retained Businesses and (3) such Data, information or other materials in the form of back-up or archival copies in the ordinary course of business; (B) the Seller Entities shall be permitted to redact those portions of such Data, information or other materials that pertain to Excluded Assets, Retained Liabilities or Retained Businesses, or, at Seller’s election, deliver copies of such Data, information or other materials unredacted; and (C) notwithstanding anything in this Agreement to the contrary, the Seller Entities shall not be required to deliver to Purchaser any of the foregoing Data, information or other materials to the extent such items cannot be accessed or retrieved by the Seller or its Subsidiaries, or separated from other Data, information or materials of Seller and its Subsidiaries that do not constitute Purchased Assets, in each case without considerable or undue burden, expense or effort (and, in such case, as promptly as reasonably practicable after the Closing (but subject to Section 5.18), Seller and Purchaser shall cooperate in good faith to implement an alternative arrangement to provide the Designated Purchasers access to such Data, information or materials, in a format and through a mechanism reasonably acceptable to the Parties, without charging any amount to any Designated Purchaser for such access);
(h) Any and all Promotional Materials that are primarily related to, primarily used in or primarily held for use in the Business, including those set forth in Section 1.2(q)), office equipment, vehicles, forklifts, trailers, tractors, furniture, shelving, safes (with combinations and keys)2.4(h) of the Seller Disclosure Schedule, and any and all medical affairs, education or other personal property owned similar non-promotional materials primarily related to, primarily used in or primarily held for use in the Business;
(i) All data and databases of Personal Data related to the Business; provided, however, the Seller Entities shall (A) not be required to assign, convey or otherwise transfer any such data and databases of Personal Data if such assignment, conveyance or transfer is not permitted by applicable Law and (B) be permitted to keep copies of any such data and databases of Personal Data to the Company extent required to demonstrate compliance with applicable Law or pursuant to internal compliance procedures;
(j) All rights under all confidentiality agreements with prospective purchasers of the Business or any of its subsidiaries, and all leases relating to the foregoingportion thereof, in each case to the extent related to the Business;
(k) Any and all claims, warranty rights, deposit rights, prepaid expense rights, claims for refunds, indemnity rights, defenses, causes of actions (including rights to remedies and damages) and rights of set-off against third parties to the extent relating to or arising out of the Purchased Assets or the Assumed Liabilities (other than any Retained Claim and any claims or defenses to the extent relating to any assets identified as Excluded Assets in Section 2.5), including with respect to past, present and future violation, misappropriation or infringement of the Business Intellectual Property and rights to damages and other remedies therefor;
(l) Any rights under insurance programs and policies maintained by third party providers with respect to clinical trials and related services primarily related to the Business;
(m) Any and all documents, instruments, papers, books, records (including Tax Returns and other books and records exclusively related to an Acquired Store Taxes of the Purchased Assets, the Assumed Liabilities or Distribution Center;
(f) the Business, but excluding any and all rights, claims or causes of action against third parties Tax Returns and other books and records relating to Taxes of Seller, the assetsSeller Entities or any of their respective Affiliates), propertiesbooks of account, business or operations financial and accounting records, personnel and employee benefits records (subject to clause (ii) below), research and development files, laboratory books, Intellectual Property disclosures and records, operating guides and manuals, product specifications, litigation files, product warranty records, customer and supplier lists, repair and performance records, purchase orders and invoices, production data, manufacturing records and quality control records, CMC records (including the information set forth in Section 2.4(m) of the Acquired StoresSeller Disclosure Schedules), the Distribution Centers or and files and data relating to marketing, sales, operations, commercial analytics, medical affairs, market access, early access programs, pricing (including government pricing data), Information Technology, catalogs, brochures, sales literature, Specified Business Contracts, and other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to, on, or after the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable)documents, in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rights, claims or causes of action relate to Assumed Liabilities;
(g) related to the extent permitted by LawBusiness and in the possession or control of the Seller Entities or any of their Subsidiaries, other than (i) all books and any books, records (including all data and other information stored on discs, tapes or other media) of materials that the Company or any of its subsidiaries relating to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent Seller Entities are required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy (copies of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Datewhich, to the extent permitted by Law, will be provided to Purchaser Sub at or promptly following the Closing) and (ii) personnel and employment records for employees and former employees who are not Transferred Employees and for Transferred Employees if prohibited by Law; provided that, with respect to any such books, records or other materials that are Purchased Assets pursuant to this clause (m), (A) the Seller Entities shall provide be permitted to keep (1) copies of such transferred books, records or other materials to the Company at extent required to demonstrate compliance with applicable Law or pursuant to internal compliance procedures, (2) copies of such books, records or other materials to the Company’s request due extent they are relevant to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee;
(h) any cash and cash equivalents in any Acquired Stores (including in cash registers) as of the close of business on the Business Day immediately preceding the Closing Date Excluded Assets or the Subsequent Closing Date for Retained Businesses and (3) such Acquired Storebooks, as applicable records or other materials in the form of back-up or archival copies in the ordinary course of business; (B) the “Purchased Cash”);
Seller Entities shall be permitted to redact those portions of such books, records or other materials that pertain to Excluded Assets, Retained Liabilities or Retained Businesses, or, at Seller’s election, deliver copies of such books, records and other materials unredacted; and (iC) all guarantees, warranties and indemnities related notwithstanding anything in this Agreement to the ownership contrary, the Seller Entities shall not be required to deliver or operation of the Purchased Assets prior toconvey to Purchaser any such books, on, records or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only other materials to the extent such guaranteesbooks records and other materials cannot be accessed or retrieved by the Seller Entities without considerable or undue burden, warranties expense or effort (and, in such case, as promptly as reasonably practicable after the Closing (but subject to Section 5.18), Seller and indemnities relate Purchaser shall cooperate in good faith to Assumed Liabilities;
(j) the exclusive right implement an alternative arrangement to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) provide to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub Designated Purchasers access to such customer data books, records or other materials, in a format and through a mechanism reasonably acceptable to the extent permitted by Law; providedParties, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data);
(m) the Intellectual Property owned by the Company and its Affiliates and exclusively related without charging any amount to any Acquired Store or Distribution Center, including Intellectual Property set forth on Section 1.1(m) of the Company Disclosure Schedules (the “Purchased Intellectual Property”Designated Purchaser for such access);
(n) All attorney work-product protections, attorney-client privileges and other legal protections related to the Contracts listed on Section 1.1(nBusiness, the Purchased Assets or the Assumed Liabilities; provided, however, the Seller Entities shall not be required to assign, convey or otherwise transfer any such protections or privileges if such assignment, conveyance or transfer would materially impair or prejudice any such material protections or privileges with respect to the Retained Businesses, the Excluded Assets or the Retained Liabilities;
(o) All goodwill of the Company Disclosure Schedules, which will be assumed by Purchaser Sub (“Assumed Contracts”)Business as a going concern; and
(op) all leases Any other assets exclusively used, or held exclusively for use, in the use and occupancy by the regional, divisional or district offices set forth on Section 1.1(o) operation of the Company Disclosure Schedules Business (collectively, the “Acquired Regional Offices”) other than any assets identified as Excluded Assets in Section 2.5). The Parties acknowledge and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is agree that a party, all related lease documents, construction plans and documents and related real estate files, and all supplies single asset may fall within more than one of the Company and its Affiliates and the fixed assets and tangible property physically located thereonsubsections of this Section 2.4; such fact does not imply that (i) such asset shall be transferred more than once or (ii) any duplication of such asset is required.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Agios Pharmaceuticals, Inc.)
Purchased Assets. Upon Subject to the terms and subject to the conditions of this Agreement, on the Closing Date (or and at the applicable Subsequent Closing Date or Distribution Center Closing Date)Closing, the Company Seller shall, and shall cause its Affiliatesthe other Seller Entities to, to sell, transfer, assign, transfer and convey and deliver to Purchaser SubPurchaser, and Purchaser Sub shall purchase purchase, acquire and accept from the Company andSeller Entities, as applicable, its Affiliates, free and clear all of all Liens (except for Permitted Liens) all the Seller Entities’ right, title and interest as of the Company and its Affiliates, in, to and under all of the assets, properties and rights owned, held or used by the Company and its Affiliates, exclusively relating to or exclusively used Closing in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating to any Acquired Store or Distribution Center (collectively, the “Purchased Assets”):
(a) all Inventory Each Contract to which Seller or any Seller Entity or any Subsidiary thereof is a party that is (i) exclusively related to the Business (other than, for the avoidance of doubt, Contracts solely between Seller and supplies its Subsidiaries or solely between Subsidiaries of Seller), a complete list of which is set forth in Section 2.4(a)(i) of the Company Seller Disclosure Schedules (other than sales or purchase orders, statements of work, standard terms and its Affiliates conditions and similar instruments that are not Material Contracts hereunder), which list may be supplemented, modified or amended prior to the fixed assets and tangible property physically located at Closing in accordance with Section 11.2(b), or (ii) set forth in Section 2.4(a)(ii) of the Acquired Stores and Seller Disclosure Schedules (collectively, such Contracts, the Distribution Centers“Business Contracts”);
(b) to (i) The real property listed in Section 2.4(b)(i) of the extent transferableSeller Disclosure Schedules (together with all improvements, fixtures and all appurtenances thereto and rights in respect thereof, the Permits held “Owned Real Property”) and (ii) the lease listed in Section 2.4(b)(ii) of the Seller Disclosure Schedules (the “Transferred Lease,” and the real property governed by the Company and its AffiliatesTransferred Lease, the “Leased Real Property”);
(c) the Company Owned Real Property The Business Intellectual Property, together with all buildings, structures, fixtures the goodwill appurtenant to any Marks included in the foregoing and improvements located thereon or attached thereto and any easements, rights-of-way, the right to sue for infringement and other appurtenants (and all title documents, surveys, related construction plans and documents and related real estate files with respect to remedies against infringement of any of the Company Owned Real Property)foregoing;
(d) the Acquired LeasesBusiness Marketing Collateral, Business Product Specifications and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, and all Acquired Lease documents, related construction plans and documents and related real estate filesBusiness Proprietary Software;
(e) Copies of any customer lists and databases to the machineryextent used in connection with the products actively sold by the Business as of the Closing Date and the products discontinued by the Business within the three (3) years prior to the Closing Date, equipmentin each case, computer hardware as available and to the extent permitted by, and subject to, applicable Law and any applicable privacy policies, and excluding (i) any credit card numbers or related customer payment source information, (ii) any social security numbers and (iii) any financial or other than pin padspersonal information that may not be transferred pursuant to applicable Law or any applicable privacy policy;
(f) Any and all Tangible Personal Property (i) exclusively used, or held exclusively for use, in the operation of the Business, wherever located, or (ii) located at the Owned Real Property or the Leased Real Property, except, in each case, for the Tangible Personal Property listed in Section 2.4(f) of the Seller Disclosure Schedules (the “Transferred Tangible Personal Property”);
(g) Any and all (i) finished goods inventory and work-in-process inventory exclusively used, or held exclusively for use, by the Business, wherever located, and (ii) raw materials, supplies, packaging and other inventories, whether or not exclusively used, or held exclusively for use, by the Business, that are located on the Owned Real Property or Leased Real Property as of the Closing, except, in each case, as set forth in Section 1.2(q2.4(g) of the Seller Disclosure Schedules (collectively, the “Business Inventory”));
(h) Any and all Business Permits (i) exclusively used, office equipmentor held exclusively for use, vehiclesin the operation of the Business or (ii) used, forkliftsor held for use, trailersin the operation of the Business that are specific to the Owned Real Property or Leased Real Property, tractors, furniture, shelving, safes (with combinations and keys)including those set forth in Section 2.4(h)(A) of the Seller Disclosure Schedules, and other personal property owned by than those set forth in Section 2.4(h)(B) of the Company or any of its subsidiaries, Seller Disclosure Schedules;
(i) Any and all leases relating to goodwill of the foregoingBusiness;
(j) Any and all claims, causes of action and defenses, rights under warranties, indemnities and all similar rights against third parties, in each case case, to the extent exclusively related to an Acquired Store or Distribution Center;
(f) all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired StoresBusiness, the Distribution Centers or other Purchased Assets or any Assumed Liabilities (for the avoidance of doubt, other than any Retained Claim, any claims arising under insurance policies of Seller and its Affiliates and any claims and defenses in respect of any assets identified as Excluded Assets in Section 2.5);
(k) Copies of any and all documents, instruments, papers, books, records (other than Tax Returns and other books and records related to the Assumed LiabilitiesTaxes), arising out books of events or transactions occurringaccount, or facts or circumstances existingfiles and data (including supplier lists, prior toand repair and performance records), oncatalogs, or after the Closing Date brochures, sales literature, promotional materials, certificates and other documents (or the applicable Subsequent Closing Date or the Distribution Center Closingportions thereof), as applicablein whatever form (including electronic form), in each case, if arising out (i) to the extent exclusively related or otherwise material to the Business, the Purchased Assets or the Assumed Liabilities or used in connection with the products actively sold by the Business as of events or transactions occurring, or facts or circumstances existing the Closing Date and the products discontinued by the Business within the three (3) years prior to the Closing Date, only and (ii) in the possession of the Seller Entities or any of their Subsidiaries, other than (A) any books, records or other materials (or portions thereof) that the Seller Entities are required by Law to retain to the extent the delivery of such copies (or portions thereof) is prohibited by Law, (B) personnel and employment records for employees and former employees who are not Transferred Employees and for Transferred Employees to the extent prohibited by Law, (C) minutes and related presentations of the governing bodies of Seller or any of its Subsidiaries and (D) for the avoidance of doubt any books, records or other materials (or portions thereof) that may be located in a facility of the Business (including the Owned Real Property and the Leased Real Property) to the extent such rightsbooks, claims records or causes of action relate to Assumed Liabilities;
(g) other materials are not exclusively related, or otherwise material, to the extent permitted by LawBusiness; provided that, (i) all books and with respect to any such books, records (including all data and other information stored on discs, tapes or other media) of the Company or any of its subsidiaries relating materials that are Purchased Assets pursuant to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (iik), collectivelysubject to Section 5.4, “Company Rx Data”the Seller Entities shall be permitted to keep (x) relating to customers copies of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically such books, records or in hard copy, or for such longer period of time other materials to the extent required by to demonstrate compliance with applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled or pursuant to retain a copy of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(g) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records providedinternal compliance procedures, (y) Parent and Purchaser Sub shall indemnify and hold copies of such books, records or other materials to the Company and its Affiliates harmless with respect extent they are relevant to any claim Excluded Assets or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith Retained Businesses and (z) following the Closing Datesuch books, to the extent permitted by Law, Purchaser Sub shall provide copies of such transferred records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee;
(h) any cash and cash equivalents in any Acquired Stores (including in cash registers) as of the close of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired Store, as applicable (the “Purchased Cash”);
(i) all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to, on, or following the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable), in each case, if related to the ownership or operation of the Purchased Assets prior to the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities;
(j) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls materials in the form of such Tax stamps located so-called “back-up” electronic tapes in any Distribution Centerthe Ordinary Course of Business;
(l) All tangible Information Technology that is located on or in any portion of the Owned Real Property or the Leased Real Property and the Information Technology set forth in Section 2.4(l) of the Seller Disclosure Schedules (collectively, the “Business Information Technology”), and the Software loaded thereon and listed in Section 2.4(l) of the Seller Disclosure Schedules, but only to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related Seller Entities have transferred the corresponding license to Purchaser pursuant to the Company’s Wellness+ program relating to customers terms of the Acquired Stores (and to the extent transfer is contractually prohibited this Agreement, or prohibited by Law, the Company shall provide Purchaser Sub access independently has a license to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data)Software;
(m) The GS1 Company Prefixes and associated Global Trade Item Numbers associated with the Intellectual Property owned finished goods inventory used, or held for use, by the Company and Seller or any of its Affiliates in connection with the Business and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property set forth on in Section 1.1(m2.4(m) of the Company Seller Disclosure Schedules (the “Purchased Intellectual PropertyTransferred Codes”);
(n) the Contracts listed on The assets set forth in Section 1.1(n2.4(n) of the Company Seller Disclosure Schedules, which will be assumed by Purchaser Sub ;
(“Assumed Contracts”)o) The Collective Bargaining Agreement set forth in Section 3.19(a) of the Seller Disclosure Schedules; and
(op) all leases Any other assets exclusively used, or held exclusively for use, in the use and occupancy by the regional, divisional or district offices set forth on Section 1.1(o) operation of the Company Disclosure Schedules Business (collectively, the “Acquired Regional Offices”other than any assets identified as Excluded Assets in Section 2.5). The Parties acknowledge and agree that a single asset may fall within more than one of clauses (a) through (p) in this Section 2.4 and all subleases, licenses that any limitation or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or qualifier in any of its Affiliates clauses (a) through (p) above shall not preclude the inclusion of a given asset in any other clause; such facts do not imply that (i) such asset shall be transferred more than once or (ii) any duplication of such asset is a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereonrequired.
Appears in 1 contract
Purchased Assets. Upon Subject to the terms and subject to the conditions of this Agreement, on at the Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date)Closing, the Company shallSellers shall sell, and shall cause its Affiliates, to sellconvey, transfer, assignassign and deliver, convey or cause to be sold, conveyed, transferred, assigned and deliver delivered, to Purchaser SubPurchaser, and Purchaser Sub shall purchase from the Company and, as applicable, its AffiliatesSellers, free and clear of all Liens (except for other than Permitted Liens) , all of Sellers’ right, title and interest of the Company and its Affiliates, in, to and under all of the following assets, properties rights and rights ownedproperties, held or used by the Company and its Affiliates, exclusively relating to or exclusively used in any Acquired Store or Distribution Center, including the following assets to the extent exclusively relating to any Acquired Store or Distribution Center wherever located (collectively, the “Purchased Assets”):
(ai) all Inventory located at or in transit to or from the Real Property;
(ii) (A) all machinery, fixtures, tools, tooling, supplies, accessories, materials, parts, packaging, machines (including computers and supplies of other hardware), prototypes, equipment, furniture and other tangible personal property, in each case, to the Company and its Affiliates and the fixed assets and tangible property physically extent located at the Acquired Stores Real Property, (B) all “fiber fabric” tooling, jigs and fixtures located at the Distribution CentersMichigan Real Property used for the manufacture and assembly of the S1 and C5 Pursuit models (the “Michigan Tooling”), (C) all tangible property set forth on Schedule 2.1(a)(ii) and (D) the vehicles listed on Schedule 2.1(a)(ii) (clauses (A) through (D), collectively, the “Business Tangible Property”);
(b) to the extent transferable, the Permits held by the Company and its Affiliates;
(ciii) the Company Florida Owned Real Property together with all and the leasehold interests in the Leased Real Property (and Sellers’ right, title and interest in or to any buildings, structures, improvements and fixtures and improvements located thereon or attached thereto and any easements, rights-of-way, and other appurtenants (and all title documents, surveys, related construction plans and documents and related real estate files with respect to the Company Owned Real Propertythereon);
(div) (A) all Business Owned IP (including, for clarity, all rights of Sellers in and to the Acquired Leasesname “Pursuit”), (B) copies of all works of authorship covered by the Copyrights in the Business Owned IP, (C) copies of all records in the possession or control of Sellers to the extent relating to the Business Owned IP, (D) copies of all designs, schematics, diagrams, and charts to the extent relating to the design, manufacture, testing, delivery, support or maintenance of any Business Product and (E) all subleases, licenses or concessions thereunder, including telephone numbers and fax numbers associated with the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, Real Property and all Acquired Lease documents, related construction plans and documents and related real estate filesemail addresses specifically associated with the Business (if any);
(ev) the machineryall books, equipmentrecords, computer hardware ledgers, logs, documentation, correspondence, lists, specifications, reports, manuals, surveys and files or other similar materials and information (including all sales, marketing and promotional literature or materials, lists of current and prospective customers, suppliers, distributors, dealers and sales representatives, lists of prospects, lists of other than pin padspurchasers of goods and services, as set forth in Section 1.2(q)business plans and marketing plans, market research, records of operation, product lists and databases, engineering and production files, standard forms of documents, manuals of operations or business procedures, employee training materials and similar materials), office equipmentwhether in paper, vehicleselectronic or other form, forkliftsin each case, trailers, tractors, furniture, shelving, safes (with combinations and keys), and other personal property owned by to the Company or any of its subsidiaries, and all leases extent relating to the foregoing, in each case to the extent exclusively related to an Acquired Store or Distribution Center;
(f) all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired StoresBusiness, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurringbut excluding (A) the Retained Books and Records and (B) personnel records that may not be transferred to Purchaser under applicable Law;
(vi) the Contracts set forth on Schedule 2.1(a)(vi), or facts or circumstances existingsubject to Section 6.11 (collectively, prior such Contracts, the “Assigned Contracts”);
(vii) all Permits primarily relating to, onprimarily used or primarily held for use in the Business, or after including those Permits set forth on Schedule 2.1(a)(vii) (collectively, the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable“Assigned Permits”), in each case, if arising out of events or transactions occurring, or facts or circumstances existing prior to the Closing Date, only to the extent such rights, claims or causes assignable as a matter of action relate to Assumed Liabilitiesapplicable Law;
(gviii) the prepaid expenses, advance payments, prepayments, overpayments, credits and security and other deposits made by Sellers to the extent permitted by Law, (i) all books and records (including all data and other information stored on discs, tapes or other media) of the Company or any of its subsidiaries relating to the assets, properties, business and operations of the Acquired Stores and the Distribution Centers (to the extent exclusively relating to the Acquired Stores and the Distribution Centers) (but excluding (A) all personnel files other than as set forth below, (B) all Tax Returns not relating solely to the Acquired Stores and (C) historical financial information except to the extent exclusively relating to the Acquired Stores), and (ii) any and all medical records, billing records, prescriptions, prescription files and records, pharmacy customer lists, signature logs and patient profiles including refill status reports and insurance coverages, co-pay and payment records (the information in this clause (ii), collectively, “Company Rx Data”) relating to customers of the Acquired Stores (which shall in any event include no less than twenty four (24) months for any Company Rx Data relating to customers of the Acquired Stores maintained electronically or in hard copy, or for such longer period of time to the extent required by applicable Law and stored in the Duplicate IT System and electronically available if not on the Duplicate IT System); provided, that the Company shall be entitled to retain a copy of Company Rx Data and other data relating to any customers of both Acquired Stores and stores to be retained by the Company; provided, further, that, the “Purchased Assets” shall include, to the extent available and permitted by law, personnel records of the Transferred Employees as set forth on Section 1.1(gSchedule 2.1(a)(viii) of the Company Disclosure Schedules; provided, further, however, that as a condition of transferring such records, (x) Purchaser Sub shall acknowledge that the Company and its Affiliates make no representations or warranties regarding the accuracy or completeness of such records and agree that it shall base no employment decisions on the records provided, (y) Parent and Purchaser Sub shall indemnify and hold the Company and its Affiliates harmless with respect to any claim or loss related to Purchaser Sub’s receipt or use of the records transferred in accordance herewith and (z) following the Closing Date, to the extent permitted by Law, Purchaser Sub shall provide copies of such transferred records to the Company at the Company’s request due to any claim or threatened claim against the Company or its Affiliates by a Transferred Employee;
(h) any cash and cash equivalents in any Acquired Stores (including in cash registers) as of the close of business on the Business Day immediately preceding the Closing Date or the Subsequent Closing Date for such Acquired Store, as applicable (the “Purchased CashPrepaid Expenses and Deposits”);
(iix) all guarantees, warranties orders and indemnities related to the ownership or operation backlog for Business Products outstanding as of the Purchased Assets prior to, on, or following the Closing (but, for clarity, not any accounts receivable or rebates of the applicable Subsequent Closing Business outstanding as of the Closing);
(x) the assets, rights and properties set forth on Schedule 2.1(a)(x);
(xi) all present and future rights, claims, counterclaims, demands, warranties, causes of action, choses in action and rights of recovery or the Distribution Center Closingrefund or reimbursement or set-off, as applicable)of whatever nature and whether or not liquidated, and all benefits arising therefrom, including all insurance and indemnity claims, in each case, if related to the ownership or operation of extent relating to the Business, the Purchased Assets prior to or the Closing Date, only to the extent such guarantees, warranties and indemnities relate to Assumed Liabilities;
(j) the exclusive right to use all telephone numbers and facsimile numbers;
(k) any cigarette, cigar, other tobacco, alcohol, liquor or other similar Tax stamps (whether affixed to a product or not) or rolls of such Tax stamps located in any Distribution Center;
(l) to the extent transfer is not contractually prohibited or prohibited by Law, the historical customer data related to the Company’s Wellness+ program relating to customers of the Acquired Stores (and to the extent transfer is contractually prohibited or prohibited by Law, the Company shall provide Purchaser Sub access to such customer data to the extent permitted by Law; provided, that to the extent such customer is also a customer of a store to be retained by the Company, the Company may retain a copy of such data);
(m) the Intellectual Property owned by the Company and its Affiliates and exclusively related to any Acquired Store or Distribution Center, including Intellectual Property set forth on Section 1.1(m) of the Company Disclosure Schedules (the “Purchased Intellectual Property”);
(n) the Contracts listed on Section 1.1(n) of the Company Disclosure Schedules, which will be assumed by Purchaser Sub (“Assumed Contracts”); and
(oxii) all leases for goodwill associated with the use and occupancy by Purchased Assets or the regional, divisional or district offices set forth on Section 1.1(o) of the Company Disclosure Schedules (collectively, the “Acquired Regional Offices”) and all subleases, licenses or concessions thereunder, including the right to all security deposits, and other amounts and instruments deposited by, on behalf of, or for the benefit of, the Company or its Affiliates thereunder with respect to which the Company or any of its Affiliates is a party, all related lease documents, construction plans and documents and related real estate files, and all supplies of the Company and its Affiliates and the fixed assets and tangible property physically located thereonBusiness.
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