Purchase and Sale of Acquired Assets On the Closing Date but effective as of the Effective Date, each Seller shall sell, transfer, deliver, convey and assign to Purchaser, and Purchaser shall purchase, acquire, and accept from such Seller, upon the terms and conditions stated herein, all of such Seller’s right, title and interest in and to the following:
(a) All hardware, third-party software licenses, documentation, third-party trademark licenses, fixtures, furniture, equipment and other assets of such Seller, in each case, which is necessary to satisfy such Seller’s obligations under the Assumed Contracts, as identified on Schedule 1.1 attached hereto (the “Transferred Resources”), to the fullest extent transferable by such Seller to Purchaser (or if not at all transferable, a mutually acceptable arrangement shall be structured as provided in Section 8.4);
(b) All right, title, and interest of such Seller in and to the source code, object code, schematics, design tools, and all associated documentation for all of such Seller’s past or present software products (including but not limited to Connect CCB, Connect IXC, Access IM, Connect RTR, IPC, WPM, Marketing Dashboard, Revenue Assurance Suite, Communications Resources Manager (CRM), and EBP&P), and all of such Seller’s software tools, subroutines, and other components, whether completed or under development, all prior or unreleased versions thereof, and all tangible embodiments (and all copies, extracts, or analyses thereof) in any medium whatsoever, and all right, title, and interest of such Seller in and to its copyrights, patents, trademarks, service marks, trade dress, and any applications therefor (including U.S. patent application number 12055933), and any related Intellectual Property Rights (as defined in Section 2.2) of such Seller, and all rights under any and all contracts for the acquisition or development of any of the foregoing, including without limitation assignments to such Seller, covenants to assign inventions to such Seller (including without limitation those assignments contained in subcontractor agreements), covenants to cooperate with such Seller’s obtaining protections of intellectual property, other provisions for ownership by such Seller of a work-for-hire, any and all confidentiality and non-disclosure agreements in favor of a Seller and all agreements similar to the foregoing, in each case to the fullest extent transferable by such Seller to Purchaser (or if not at all transferable, a mutually acceptable arrangement shall be structured as provided in Section 8.4) (collectively, the “Intellectual Property”);
(c) All right, title, and interest (including rights to payment for customer services which services were rendered on or following the Effective Date or for Software (as hereinafter defined) for periods on or following the Effective Date) of such Seller in and under the Assumed Contracts (as hereinafter defined) on and after the Effective Date, including any successor agreements to the Assumed Contracts which are entered into by such Seller with respect to the Business prior to the Closing Date (the “Contract Rights”);
(d) Cash in an amount, when all such payments made by Sellers are aggregated, equal to Ninety Seven Thousand Three Hundred Seventy-Four Dollars and 52/100 ($97,374.52) (“Prepaid Customer Funds” and, together with the Transferred Resources, Intellectual Property, and Contract Rights, the “Acquired Assets”), which amount represents prepaid but undelivered maintenance obligations under the Assumed Contracts with Bresnan (in an amount equal to $7,760); Xxxxxxxxxx (in an amount equal to $40,000); Westel (in an amount equal to $6,533); and Page One (in an amount equal to $43,081.52);
(e) All receivables and rights to payment arising with respect to customer services provided on or after the Effective Date or Software for periods on or following the Effective Date relating to any Acquired Assets;
(f) Copies of those books and records of such Seller directly related to the Acquired Assets, including invoices, purchase orders, and vendor and customer correspondence; and
(g) All goodwill and other intangible assets associated with the foregoing; in each case wherever located, but specifically excluding those assets described in Section 1.2.
Purchase and Sale of the Purchased Assets Except as otherwise provided below, upon the terms and subject to the conditions of this Agreement, Buyer agrees to purchase from Seller and the Retained Subsidiaries, and Seller agrees to, and to cause the Retained Subsidiaries to, sell, convey, transfer, assign and deliver, or cause to be sold, conveyed, transferred, assigned and delivered, to Buyer at the Closing, free and clear of any Liens other than Permitted Liens, all of Seller’s and the Retained Subsidiaries’ right, title and interest in, to and under the assets, properties and business, of every kind and description, owned, used or held for use primarily in the conduct of the Business by Seller or any of the Retained Subsidiaries (but, for the avoidance of doubt, excluding any Excluded Assets or assets and properties of any Purchased Subsidiary) (the “Purchased Assets”), including all right, title and interest of Seller and the Retained Subsidiaries in, to and under the following Purchased Assets:
(a) the Owned Real Property, together with all buildings, fixtures and improvements erected thereon;
(b) all rights under the Leases with respect to the Leased Real Property;
(i) all tangible personal property and interests therein, including machinery, equipment, furniture, office equipment, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible property (including all interests in personal property underlying capital leases) located at the Real Property and held for use primarily in the conduct of the Business and (ii) those assets of Seller related primarily to the Business that are located at its Corporate Technology Center facility located in Milwaukee, Wisconsin, which are listed on Schedule 2.02(c);
(d) all raw materials, work-in-process, finished goods, supplies and other inventories used or held for use primarily in the conduct of the Business (collectively, the “Inventory”);
(e) all rights under all Contracts (other than the Leases) used or held for use primarily in the conduct of the Business, including those listed in Schedule 2.02(e) (the “Purchased Contracts”);
(f) all rights, claims, credits, causes of action or rights of set-off against third parties relating to or arising from the Purchased Assets or the Assumed Liabilities, including unliquidated rights under manufacturers’ and vendors’ warranties;
(g) all trade accounts receivable and other receivables (collectively, the “Accounts Receivable”) to the extent arising out of the Business;
(h) all prepaid assets to the extent arising out of the Business;
(i) all Business Intellectual Property Rights other than Business Intellectual Property Rights owned by the Purchased Subsidiaries;
(j) all Permits that are necessary to the operation of the Business; and
(k) Business Records relating primarily to the Business.
Purchaser’s Closing Obligations On the Closing Date, Purchaser, at its sole cost and expense, will deliver to Seller the following items:
(a) The Purchase Price, after all adjustments are made as herein provided, by Federal Reserve wire transfer of immediately available funds, in accordance with the timing and other requirements of Section 3.2;
(b) A counterpart original of each Assignment of Leases, duly executed by Purchaser;
(c) A counterpart original of each Assignment, duly executed by Purchaser;
(d) Evidence reasonably satisfactory to Seller that the person executing the Assignment of Leases, the Assignment, and the Tenant Notice Letters on behalf of Purchaser has full right, power and authority to do so;
(e) Form of written notice executed by Purchaser and to be addressed and delivered to the Tenants by Purchaser in accordance with Section 10.6 herein, (i) acknowledging the sale of the Property to Purchaser, (ii) acknowledging that Purchaser has received and that Purchaser is responsible for the Security Deposit (specifying the exact amount of the Security Deposit) and (iii) indicating that rent should thereafter be paid to Purchaser and giving instructions therefor (the “Tenant Notice Letters”);
(f) A counterpart original of the Closing Statement, duly executed by Purchaser;
(g) A certificate, dated as of the Closing Date, stating that the representations and warranties of Purchaser contained in Section 8.2 are true and correct in all material respects as of the Closing Date;
(h) A counterpart original of the Operating Agreement (as defined in Section 10.3(k) below), duly executed by Purchaser; and
(i) Such other documents as, may be reasonably necessary or appropriate to effect the consummation of the transaction which is the subject of this Agreement.
Seller’s Closing Obligations On the Closing Date, Seller, at its sole cost and expense, will deliver to Purchaser the following items:
(a) A special warranty deed (the “Deed”), duly executed and acknowledged by Seller, conveying to Purchaser the Real Property and the Improvements, subject only to the Permitted Exceptions;
(b) A xxxx of sale in the form attached hereto as Exhibit C (the “Xxxx of Sale”), duly executed by Seller, assigning and conveying to Purchaser, without representation or warranty, title to the Personal Property;
(c) A counterpart original of an assignment and assumption of Seller’s interest, as lessor, in the Leases and Security Deposits in the form attached hereto as Exhibit B (the “Assignment of Leases”), duly executed by Seller, conveying and assigning to Purchaser all of Seller’s right, title and interest, as lessor, in the Leases and Security Deposits;
(d) A counterpart original of an assignment and assumption of Seller’s interest in the Service Contracts (other than any Service Contracts as to which Purchaser has notified Seller prior to the expiration of the Evaluation Period that Purchaser elects not to assume at Closing) and the Licenses and Permits in the form attached hereto as Exhibit A (the “Assignment”), duly executed by Seller, conveying and assigning to Purchaser all of Seller’s right, title, and interest, if any, in such Service Contracts and the Licenses and Permits;
(e) The Tenant Notice Letters, duly executed by Seller, with respect to the Tenants;
(f) Evidence reasonably satisfactory to Purchaser and the Title Company that the person executing the documents delivered by Seller pursuant to this Section 10.3 on behalf of Seller has full right, power, and authority to do so;
(g) A certificate in the form attached hereto as Exhibit I (“Certificate as to Foreign Status”) certifying that Seller is not a “foreign person” as defined in Section 1445 of the Internal Revenue Code of 1986, as amended;
(h) All original Leases, to the extent in Seller’s possession, the original Major Tenant Estoppels and any other estoppels as described in Section 7.2, SNDAs as described in Section 7.3 and all original Licenses and Permits and Service Contracts in Seller’s possession bearing on the Property;
(i) A certificate, dated as of the Closing Date, stating that the representations and warranties of Seller contained in Section 8.1 are true and correct in all material respects as of the Closing Date (with appropriate modifications to reflect any changes therein that are not prohibited by this Agreement, including but not limited to updates to the Lease Schedule, Schedule of Service Contracts and Arrearage Schedule as set forth in Section 9.1(b));
(j) An Affidavit of Title in form and substance reasonably satisfactory to the Title Company; and
(k) A counterpart original of an operating agreement in the form of Exhibit L attached to this Agreement, duly executed by Seller or an affiliate of Seller (the “Operating Agreement”).
Acquisition Transactions The Company shall provide the holder of this Warrant with at least twenty (20) days’ written notice prior to closing thereof of the terms and conditions of any of the following transactions (to the extent the Company has notice thereof): (i) the sale, lease, exchange, conveyance or other disposition of all or substantially all of the Company’s property or business, or (ii) its merger into or consolidation with any other corporation (other than a wholly-owned subsidiary of the Company), or any transaction (including a merger or other reorganization) or series of related transactions, in which more than 50% of the voting power of the Company is disposed of.
Purchaser’s Closing Deliveries Purchaser shall obtain or execute and deliver to Seller at Closing the following documents, all of which shall be duly executed, acknowledged and notarized where required:
Merger, Consolidation, Acquisition and Sale of Assets (a) Enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a substantial portion of the assets or stock of any Person or permit any other Person to consolidate with or merge with it.
Purchase and Sale of Purchased Assets Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller Parent shall, and shall cause the other Sellers to, sell, convey, assign and transfer to Purchaser or the applicable Purchaser Designated Affiliates, and Purchaser shall or shall cause the applicable Purchaser Designated Affiliates to purchase, acquire and accept, all of Seller Parent’s and its Subsidiaries’ right, title and interest, free and clear of all Liens other than Permitted Liens, as at the Closing in the following (collectively, the “Purchased Assets”):
(a) the equity interests in the Conveyed Subsidiaries (collectively, the “Shares”);
(b) the real property that is set forth in Section 2.1(b) of the Seller Disclosure Letter (collectively, the “Owned Real Property”) and the Facilities (including the related improvements and fixtures), and all easements and other rights and interests appurtenant thereto;
(c) the real property leases, subleases, licenses and occupancy arrangements that are set forth in Section 2.1(c) of the Seller Disclosure Letter (collectively, the “Real Property Leases” and the real property related to such Real Property Leases, the “Leased Real Property”), including the right to all security deposits and other amounts and instruments deposited by or on behalf of the Sellers thereunder;
(d) (i) other than Information Systems (which are the subject of clauses (ii) and (iii)), the owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property (A) that is Related to the Business and located at a Facility, except as set forth on Section 2.3(a)(xx) of the Seller Disclosure Letter, or (B) set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, (ii) personal computers and vehicles primarily used by the Transferred Employees in respect of the Business (the assets described in the foregoing clauses (i) and (ii), collectively, the “Equipment”), (iii) Business IT Systems, and (iv) any leases relating to such Equipment or Business IT Systems (the “Equipment Leases”);
(e) Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements (i) to which Seller Parent or any of its Subsidiaries is a party and that are related solely to the Business, a Purchased Asset or an Assumed Liability, or (ii) that constitute a Shared Contract, but only the portion of such Shared Contract related to the Business (collectively, the “Assumed Contracts”);
(f) all Inventory and samples of any Product;
(g) all Business IP, including the right to xxx and recover and retain damages for past, present and future infringement or misappropriation of or other violation of any Business IP and all corresponding rights that, now or hereafter, may be secured throughout the world with respect to any Business IP, but for clarity excluding all Retained Names;
(h) all Registration Information (including in relation to pending applications for Product Registrations and Manufacturing Registrations) Related to the Business;
(i) all Governmental Authorizations, including Product Registrations, Manufacturing Registrations and Environmental Permits, that are owned, used or licensed (subject to the terms of such licenses) and Related to the Business;
(j) without duplication, (A) all Records Relating to the Business (including any applicable attorney-client privilege, attorney work product protection and expectation of client privilege attaching to any such Record), other than the Records set forth on Section 2.1(j) of the Seller Disclosure Letter (the “Specified Records”); provided that the Sellers and their Affiliates may retain one (1) copy of each of the foregoing pursuant to Section 6.8 and remove or redact the names of any customers or vendors from such lists to the extent such customers or vendors relate solely to the Retained Businesses, (B) copies of (x) the portions of all Records that relate to, but do not primarily relate to, the Business and (y) the Specified Records, and (C) the corporate books and records (including Tax Returns other than any Seller Combined Tax Returns) of the Conveyed Subsidiaries and their Subsidiaries to the extent related to the Business; provided, further, that in each case of clauses (A)-(C), Seller Parent may redact or remove any information not related to the Business;
(k) all accounts receivable and all other assets, in each case included in the calculation of Final Business Working Capital, and all Cash Equivalents included in the calculation of Final Business Net Cash;
(l) the goodwill Relating to the Business, together with the right to represent to third parties that Purchaser is the successor to the Business;
(m) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent) relating primarily to the Business, a Purchased Asset or an Assumed Liability;
(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 Related to the Business or primarily related to a Purchased Asset or an Assumed Liability and included in the calculation of Final Business Working Capital or Final Business Net Cash;
(o) the amount of any insurance proceeds, recoveries or refunds (net of any reasonable costs of investigating and pursuing the underlying claim and of collection and any Taxes imposed in respect thereof) received by Seller Parent or any of its Affiliates under the Insurance Policies after the date hereof in respect of any Loss prior to the Closing in respect of any Purchased Asset or Assumed Liability to the extent Purchaser does not otherwise receive the benefit thereof (including through application of such proceeds) and except to the extent the related Liabilities are included in the calculation of Final Business Working Capital or Final Business Net Cash;
(p) the assets of all Conveyed Subsidiary Plans and the assets transferred to Purchaser and the Purchaser Designated Affiliates pursuant to Section 6.6;
(q) the assets set forth in Section 2.1(q) of the Seller Disclosure Letter;
(r) to the extent legally transferable, all third-party warranties, indemnities, further assurance and other similar covenants, and guarantees to the extent relating to any of the Equipment, Inventory, other Purchased Assets and Assumed Liabilities; and
(s) any other assets, properties or rights in each case Relating to the Business, other than those assets specifically identified as Excluded Assets in clauses (i) through (xx) of Section 2.3(a). Notwithstanding anything else herein to the contrary, (i) any assets, properties or rights of any Conveyed Subsidiary (or Subsidiary thereof) that constitute Purchased Assets hereunder shall be deemed Purchased Assets for all purposes of this Agreement (including Article VII), except to the extent any such asset, property or right otherwise would be an Excluded Asset had it not been an asset, property or right of such Conveyed Subsidiary or Subsidiary (and instead an asset, right, or property of Seller Parent or any of its Affiliates (other than a Conveyed Subsidiary (or a Subsidiary thereof))) (a “Conveyed Subsidiary Excluded Asset”), (ii) any Conveyed Subsidiary Excluded Asset shall be deemed an Excluded Asset for all purposes of this Agreement (including Article VII) and Seller Parent shall use commercially reasonable efforts to transfer such Conveyed Subsidiary Excluded Asset, subject to obtaining required consents and Approvals, out of the relevant Conveyed Subsidiary (or Subsidiary thereof) on or prior to the Closing, or thereafter in accordance with Section 6.22, and (iii) any Liability of any Conveyed Subsidiary (or Subsidiary thereof) that otherwise would be a Retained Liability had it not been a Liability of such Conveyed Subsidiary or Subsidiary (and instead a Liability of Seller Parent or any of its Affiliates (other than a Conveyed Subsidiary (or a Subsidiary thereof))) shall be deemed a Retained Liability for all purposes of this Agreement (including Article VII) and Seller Parent shall use commercially reasonable efforts to transfer such Retained Liability, subject to obtaining required consents and Approvals, out of such Conveyed Subsidiary (or Subsidiary thereof) on or prior to the Closing, or thereafter in compliance with Section 6.22. The transfer of assets, properties and rights of any Conveyed Subsidiaries (or any Subsidiary thereof) deemed a Purchased Asset shall be effected solely by virtue of the transfer of the Sellers’ right, title and interest in the Shares and not through the direct transfer of such assets, properties or rights, and Seller Parent and its Subsidiaries shall not be required to transfer any such assets, properties or rights of the Conveyed Subsidiaries and their Subsidiaries other than through the transfer of the Sellers’ right, title and interest in the Shares.
Buyer’s Closing Obligations At the Closing, Buyer shall:
Acquired Assets On the Closing Date, in accordance with this Agreement, Seller and its Subsidiaries shall sell, convey, transfer, assign and deliver to Buyer, free and clear of any and all Encumbrances, and Buyer will purchase, acquire and accept, all of Seller's and its Subsidiaries' respective right, title and interest in and to the following properties, assets and other rights, personal or mixed, tangible or intangible (collectively, the "Acquired Assets"):
(a) The Equipment of Seller and its Subsidiaries listed on Schedule 2.1(a), together with any Equipment transferred to Buyer pursuant to Section 2.4 (c) (the "Acquired Equipment");
(b) The inventory of Seller and its Subsidiaries listed on Schedule 2.1(b) (the "Acquired Inventory");
(c) The Contracts of Seller and its Subsidiaries (including any future claims arising from or related to such contracts) listed on Schedule 2.1(c) hereto and the Backlog related to such Contracts (the "Assumed Contracts");
(d) Copies or originals of all books, records, data (in any media), papers and instruments of whatever nature and wherever located to the extent related to the Acquired Assets;
(e) All licenses, sublicenses and other contract rights held by Seller and its Subsidiaries in connection with the Business listed on Schedule 2.1(e), including all Insituform and NuPipe licenses, sublicenses and rights to use or operate under Insituform or NuPipe patents or trademarks, and intangible or intellectual property rights, including know-how, relating thereto or to the Business (the "Acquired Intellectual Property");
(f) All Permits required solely in connection with the Business in effect as of the Closing Date, to the extent such Permits are transferable (the "Acquired Permits"); and
(g) All rights to the name "Insituform", "Insituform East", "MidSouth" and "insitu" and all derivatives thereof.
