Sale and Delivery of the Assets. 1.1 Delivery of the Assets. ---------------------- (a) Subject to and upon the terms and conditions of this Agreement, at the closing of the transactions contemplated by this Agreement (the "Closing"), the Seller shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, the following properties, assets and other claims, rights and interests: (i) all inventories of raw materials, work in process, finished goods, office supplies, maintenance supplies, packaging materials, spare parts and similar items of the Seller (collectively, the "Inventory") which exist on the Closing Date (as defined below); (ii) all accounts, accounts receivable, notes and notes receivable existing on the Closing Date which are payable to the Seller, including any security held by the Seller for the payment thereof, but excluding any account, account receivable, note or note receivable payable by any affiliate (as such term is defined in the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder) of Seller ("Affiliate") to the Seller (the accounts, accounts receivable, notes and notes receivable, including any related security therein, to be transferred to the Buyer pursuant hereto are collectively referred to herein as the "Accounts Receivable"); (iii) all prepaid expenses, deposits, bank accounts and other similar assets of the Seller existing on the Closing Date, including the cash represented by such assets; (iv) all rights of the Seller under the contracts, agreements, leases, licenses and other instruments set forth on Schedules 2.11 and 2.16 ----------------------- attached hereto (collectively, the "Contract Rights"); (v) all Permits (as defined in Section 2.17) necessary to conduct the business of the Seller; (vi) all books, records and accounts, correspondence, production records, technical, accounting, manufacturing and procedural manuals, customer lists, employment records, studies, reports or summaries relating to any environmental conditions or consequences of any operation, present or former, as well as all studies, reports or summaries relating to any environmental aspect or the general condition of the Assets, and any confidential information which has been reduced to writing relating to or arising out of the business of the Seller; (vii) all rights of the Seller under express or implied warranties from the suppliers of the Seller; (viii) the motor vehicles and other rolling stock owned by the Seller on the Closing Date; (ix) all of the machinery, equipment, tools, production reels and spools, tooling, dies, production fixtures, maintenance machinery and equipment, furniture, leasehold improvements and construction in progress owned by the Seller on the Closing Date whether or not reflected as capital assets in the accounting records of the Seller (collectively, the "Fixed Assets"); (x) all of the Seller's right, title and interest in and to all intangible property rights, including but not limited to inventions, discoveries, trade secrets, processes, formulas, know-how, United States and foreign patents, patent applications, trade names, including the name "Film Microelectronics" or any derivation thereof, trademarks, trademark registrations, applications for trademark registrations, copyrights, copyright registrations, owned or, where not owned, used by the Seller in its business and all licenses and other agreements to which the Seller is a party (as licensor or licensee) or by which the Seller is bound relating to any of the foregoing kinds of property or rights to any "know-how" or disclosure or use of ideas (collectively, the "Intangible Property"); (xi) except as specifically provided in Subsection 1.1(b) hereof, all other assets, properties, claims, rights and interests of the Seller which exist on the Closing Date, of every kind and nature and description, whether tangible or intangible, real, personal or mixed. (b) Notwithstanding the provisions of paragraph (a) above, the assets to be transferred to the Buyer under this Agreement shall not include those assets listed on Schedule 1.1(ii) attached hereto (the "Excluded Assets"). --------------- (c) The Inventory, Accounts Receivable, Contract Rights, Fixed Assets, Intangible Property and other properties, assets and business of the Seller described in paragraph (a) above, other than the Excluded Assets, shall be referred to collectively as the "Assets."
Appears in 1 contract
Sale and Delivery of the Assets. 1.1 Delivery of the Assets. ----------------------
(a) Subject to and upon the terms and conditions of this Agreement, at the closing of the transactions contemplated by this Agreement (the "Closing"), the Seller Unidigital Parties shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the SellerUnidigital Parties, free and clear of all liens, liabilities, security interests, leasehold interests and encumbrances of any nature whatsoever (except as otherwise expressly provided herein), the following properties, assets and other claims, rights and interestsinterests of the Unidigital Parties relating to the Business set forth below (but excluding in all events the Excluded Assets (as defined below)) (collectively, the "Assets"): With respect to the Selling Parties:
(i) all inventories of raw materials, work in process, goods in transit (i.e., inventories purchased by, but not delivered to, the Selling Parties), finished goods, office supplies, maintenance supplies, packaging materials, spare parts and similar items of the Seller (collectively, the "Inventory") which exist on the Closing Date (as defined below);
(ii) all accounts, accounts receivable, notes receivable and notes receivable existing on the Closing Date which are payable to the Seller, (including any security held by the Seller Selling Parties for the payment thereof) (collectively, but excluding any account, account receivable, note or note receivable payable by any affiliate (as such term is defined in the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder) of Seller ("Affiliate") to the Seller (the accounts, accounts receivable, notes and notes receivable, including any related security therein, to be transferred to the Buyer pursuant hereto are collectively referred to herein as the "Accounts Receivable");
(iii) all those prepaid expenses, deposits, bank accounts and other similar assets of the Seller existing on the Closing Date, including the cash represented by such assets;expenses set forth in Schedule 1.1(a)(iii); --------------------
(iv) all rights of the Seller under the contracts, agreements, leases, licenses licenses, purchase orders, customer sales agreements and other instruments set forth on Schedules 2.11 and 2.16 ----------------------- Schedule 1.1(a)(iv) attached hereto (collectively, the "Contract -------------------- Rights");
(v) all Permits (as defined in Section 2.17) necessary customer lists; production records; technical, manufacturing and procedural manuals; engineering data; development and design data; plans, blueprints, specifications and drawings; and other useful business records, including electronic media, and any confidential or other information which has been reduced to conduct writing, relating to the business of the SellerAssets;
(vi) all books, records and accounts, correspondence, production records, technical, accounting, manufacturing and procedural manuals, customer lists, employment records, studies, reports or summaries relating to any environmental conditions or consequences of any operation, present or former, as well as all studies, reports or summaries relating to any environmental aspect or the general condition of the Assets, and any confidential information which has been reduced to writing relating to or arising out of the business of the Seller;
(vii) all rights of the Seller Selling Parties under express or implied warranties from the suppliers of the SellerAssets to the extent transferable (but excluding such rights insofar as the same pertain to liabilities retained by the Selling Parties hereunder);
(viii) the motor vehicles and other rolling stock owned by the Seller on the Closing Date;
(ixvii) all of the machinery, equipment, tools, production reels and spoolsdies, tooling, dies, production fixtures, maintenance machinery and equipment, computers, telecommunication systems, fittings and other office equipment, furniture, leasehold improvements and construction in progress on the date of Closing which are owned by the Seller Selling Parties and are set forth on the Closing Date whether or not reflected as capital assets in the accounting records of the Seller Schedule 1.1(a)(vii) --------------------- (collectively, the "Fixed Assets");
(xviii) subject to Section 8.6 hereof, for a period of five years following the Closing, all of the Seller's right, title and interest of the Selling Parties in and to all intangible property rightsrights relating to the Business, including but not limited all of the Selling Parties' rights to inventions, discoveries, trade secrets, processes, formulas, know-how, United States and foreign patents, patent applications, trade names, including use the name "Film MicroelectronicsElements," "Elements (NY)," or any derivation thereofthereof in the United States of America, trademarks, trademark registrations, applications for trademark registrations, copyrights, copyright registrations, owned or, where not owned, used by the Seller in its business and all licenses and other agreements to which the Seller is a party (as licensor or licensee) or by which the Seller is bound relating to any of the foregoing kinds of property or rights to any "know-how" or disclosure or use of ideas goodwill associated thereto (collectively, the "Intangible Property");
(ix) all transferable approvals, authorizations, certifications, consents, variances, permissions, licenses and permits to or from, or filings, notices or recordings to or with, federal, state, foreign, and local governmental authorities as held or effected by the Selling Parties in connection with the Assets;
(x) all office supplies, production supplies, spare parts, other miscellaneous supplies, and other tangible property of any kind wherever located;
(xi) except all prepayments and prepaid expenses of the Selling Parties;
(xii) all claims, causes of action, rights of recovery and rights of set-off of any kind of the Selling Parties;
(xiii) the right to receive and retain mail, accounts receivable payments and other communications relating to the Business;
(xiv) the right to xxxx and receive payment for products shipped or delivered by either of the Selling Parties and services performed by either of the Selling Parties but unbilled or unpaid as specifically provided of the Closing;
(xv) all telephone numbers (e.g., "800" numbers) used by either of the Selling Parties;
(A) the right to use the four floors at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx City, currently used by the Selling Parties and further described on Schedule 1.1(a)(xvi) attached hereto (the "Premises") for the --------------------- period of time and at the rental rates described on Schedule 1.1(a)(xvi), as --------------------- though Buyer were the lessee thereof under a lease having terms no less favorable to the lessee than those contained in Subsection 1.1(bthe real property lease attached hereto as Exhibit 1.1
(a) hereof(xvi) (the "Existing Premises Lease"), as such terms -------------------- would apply to a lessee who is not in default under the Existing Premises Lease and (B) the right to apply the proceeds of the security deposit of the Selling Parties held by the landlord of the Premises to the lease to be entered into between such landlord and the Buyer as of the Closing; and
(xvii) the right to use the machinery and equipment described on Schedule 1.1(a)(xvii) attached hereto (the "Special Leased Equipment") for ---------------------- the period of time and at the rental rates described on Schedule 1.1(a)(xvii) ---------------------- (the "Special Equipment Lease Terms"), as though Buyer were the lessee of the Special Leased Equipment covered thereby on terms no less favorable to Buyer than those contained in the equipment leases covering such Special Leased Equipment attached hereto as Exhibit 1.1(a)(xvii) (the "Existing Special Leased --------------------- Equipment Leases"), as such terms would apply to a lessee who is not in default under the Existing Special Leased Equipment Leases, including all rights, if any, contained in the Existing Special Leased Equipment Leases to purchase Equipment from the lessor. With respect to the Parent, all other assets, properties, claims, rights and interests assets of the Seller Parent or any of its subsidiaries other than the Selling Parties which exist on are used solely or primarily in the Closing Date, Business and which would be included in items (i) through (xvii) above if the Parent and such subsidiaries were included in the definition of every kind and nature and description, whether tangible or intangible, real, personal or mixed"Selling Parties" (the "Other Included Assets").
(b) Notwithstanding the provisions of paragraph (a) above, the The assets to be transferred to the Buyer under this Agreement shall be limited solely to those Assets set forth in Section 1.1(a) and shall not include any other assets of the Unidigital Parties, including without limitation, (i) any of the Unidigital Parties' rights or consideration under this Agreement, or (ii) any refunds of federal, state, foreign or local income or other tax paid by the Unidigital Parties, or (iii) any insurance policies currently held by the Unidigital Parties and related premium agreements for general liability, product liability and workers compensation insurance, or (iv) the financial books and records of the Unidigital Parties (it being understood that the Unidigital Parties shall make such financial books and records related to the Assets available at the reasonable request of the Buyer), or (v) cash or cash equivalents of the Unidigital Parties, or (vi) those assets listed on Schedule 1.1(ii1.1(b) attached hereto (collectively, the "Excluded Assets"). ---------------
(c) The Inventory, Accounts Receivable, Contract Rights, Fixed Assets, Intangible Property and other properties, assets and business of the Seller described in paragraph (a) above, other than the Excluded Assets, shall be referred to collectively as the "Assets."
Appears in 1 contract
Sale and Delivery of the Assets. 1.1 Delivery of the Assets. ----------------------
(a) Subject to and upon the terms and conditions of this Agreement, at each of the closing four closings of the transactions contemplated by this Agreement (the each, a "Closing"), the Seller shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, the following properties, assets and other claims, rights and interestsinterests related to the Store acquired by the Buyer at each such Closing:
(i) all inventories of raw materialsinventories, work in processvideotapes, finished goods, office supplies, maintenance supplies, packaging materials, spare parts materials and similar items of the Seller (collectively, the "Inventory") which exist on the Closing Date (as defined below);
(ii) all accounts, accounts receivable, notes and notes receivable existing on the Closing Date which are payable to the Seller, including any security held by the Seller for the payment thereof, but excluding any account, account receivable, note or note receivable payable by any affiliate thereof (as such term is defined in the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder) of Seller ("Affiliate") to the Seller (the accounts, accounts receivable, notes and notes receivable, including any related security therein, to be transferred to the Buyer pursuant hereto are collectively referred to herein as the "Accounts Receivable");; 7
(iii) all prepaid expenses, deposits, bank accounts deposits and other similar assets of the Seller existing on the Closing Date, including the cash represented by such assets;
(iv) all rights of the Seller under the contracts, agreements, leases, licenses and other instruments set forth on Schedules 2.11 SCHEDULE 2.16 attached hereto, but not including such rights under contracts, agreements, leases, licenses and 2.16 ----------------------- attached hereto other instruments set forth on SCHEDULE 1.1 (collectively, the "Contract Rights");
(v) all Permits (as defined in Section 2.17) necessary to conduct the business copies of the Seller;
(vi) all books, records and accounts, correspondence, production records, technical, accounting, manufacturing and procedural manuals, customer lists, employment records, studies, reports or summaries relating to any environmental conditions or consequences of any operation, present or former, as well as all studies, reports or summaries relating to any environmental aspect or the general condition of the Assets, and any confidential information which has been reduced to writing relating to or arising out of the business of the Seller;
(viivi) all rights of the Seller under express or implied warranties from the suppliers of the Seller;
(viii) the motor vehicles and other rolling stock owned by the Seller on the Closing Date;
(ixvii) all of the machinery, equipment, tools, production reels and spools, tooling, dies, production fixtures, maintenance machinery and equipment, furniture, leasehold improvements and construction in progress owned by the Seller on the Closing Date whether or not reflected as capital assets in the accounting records of the Seller (collectively, the "Fixed Assets");
(xviii) all of the Seller's right, title and interest in and to all intangible property rights, including but not limited to inventions, discoveries, trade secrets, processes, formulas, know-how, United States and foreign patents, patent applications, trade names, including the name "Film Microelectronics" trade names (if any) identified on SCHEDULE I attached hereto or any derivation thereof, trademarks, trademark registrations, applications for trademark registrations, copyrights, copyright registrations, owned or, where not owned, used by the Seller in its business and all licenses and other agreements to which the Seller is a party (as licensor or licensee) or by which the Seller is bound relating to any of the foregoing kinds of property or rights to any "know-know- how" or disclosure or use of ideas (collectively, the "Intangible Property");; and
(xiix) except as specifically provided in Subsection 1.1(b) hereof, all other assets, properties, claims, rights and interests of the Seller which exist on the Closing Date, of every kind and nature and description, whether tangible or intangible, real, personal or mixed.
(b) Notwithstanding the provisions of paragraph (a) above, the assets to be transferred to the Buyer under this Agreement shall not include those assets listed on Schedule 1.1(ii) SCHEDULE 1.1 attached hereto (the "Excluded Assets"). ---------------.
(c) The Inventory, Accounts Receivable, Contract Rights, Fixed Assets, Intangible Property and other properties, assets and business of the Seller with respect to each Store described in paragraph (a) above, other than the Excluded Assets, shall be referred to collectively as the "Assets."
Appears in 1 contract
Samples: Asset Purchase Agreement (West Coast Entertainment Corp)
Sale and Delivery of the Assets. 1.1 Delivery of the Assets. ----------------------
(a) Subject to and upon the terms and conditions of this Agreement, except as specifically provided in Section 1.1(b) hereof, at the closing of the transactions contemplated by this Agreement (the "Closing"), the Seller shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, free and clear of all liens, liabilities, security interests, leasehold interests and encumbrances of any nature whatsoever (except as otherwise expressly provided herein), all of the following properties, assets and other claims, rights and interestsinterests of the Seller or which are used in the Business of whatever kind, character or description, whether real, personal or mixed, tangible or intangible, wherever situated, including without limitation:
(i) all inventories of raw materials, work in process, goods in transit (i.e., inventories purchased by, but not delivered to, the Seller), finished goods, office supplies, maintenance supplies, packaging materials, spare parts and similar items of the Seller (collectively, the "Inventory") which exist on the Closing Date (as defined below);
(ii) all accounts, accounts receivable, notes receivable and notes receivable existing on the Closing Date which are payable to the Seller, (including any security held by the Seller for the payment thereof) (collectively, but excluding any account, account receivable, note or note receivable payable by any affiliate (as such term is defined in the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder) of Seller ("Affiliate") to the Seller (the accounts, accounts receivable, notes and notes receivable, including any related security therein, to be transferred to the Buyer pursuant hereto are collectively referred to herein as the "Accounts Receivable");
(iii) all those prepaid expenses, deposits, bank accounts and other similar assets of the Seller existing on the Closing Date, including the cash represented by such assetsexpenses set forth in Schedule 1.1(a)(iii);
(iv) all rights of the Seller under the contracts, agreements, leases, licenses licenses, purchase orders, customer sales agreements and other instruments set forth on Schedules 2.11 Schedule 2.9(b) and 2.16 ----------------------- Schedule 2.13(b) attached hereto (collectively, the "Contract Rights");
(v) all Permits (except as defined set forth in Section 2.17) necessary to conduct the business of the Seller;
(vi) 1.1(b)(iv), all books, records and ; payment records; accounts, ; customer lists; environmental reports or studies; correspondence, ; production records, ; technical, accounting, manufacturing and procedural manuals; engineering data; development and design data; plans, customer listsblueprints, specifications and drawings; employment and personnel records; and other useful business records, studies, reports or summaries relating to any environmental conditions or consequences of any operation, present or former, as well as all studies, reports or summaries relating to any environmental aspect or the general condition of the Assetsincluding electronic media, and any confidential or other information which has been reduced to writing writing, utilized in the conduct of or relating to the Business or arising out of the business of Assets (as hereinafter defined), subject to the Seller's right to retain copies thereof which the Seller reasonably requires for its ongoing operation, winding-up or dissolution;
(viivi) all rights of the Seller under express or implied warranties from the suppliers of the SellerAssets to the extent transferable (but excluding such rights insofar as the same pertain to liabilities retained by the Seller hereunder);
(viiivii) the motor vehicles and other rolling stock owned by the Seller listed on the Closing DateSchedule 1.1(a)(vii);
(ixviii) all of the machinery, equipment, tools, production reels and spoolsdies, tooling, dies, production fixtures, maintenance machinery and equipment, computers, telecommunication systems, fittings and other office equipment, furniture, leasehold improvements and construction in progress owned by the Seller on the Closing Date date hereof whether or not reflected as capital assets in the accounting records of the Seller which are owned by the Seller and used or useful in the Business including but not limited to all of the foregoing located at the locations set forth on Schedule 1.1(a)(viii) (collectively, the "Fixed Assets");
(xix) all of the Seller's right, title and interest of the Seller in and to all intangible property rightsrights relating to the Business, including but not limited to inventions, discoveries, trade secrets, processes, formulas, know-how, United States and foreign patents, patent applications, trade names, including but not limited to the name "Film Microelectronics" Kwik International Color, Ltd.", or any derivation thereofthereof and those names listed on Schedule 2.20 attached hereto, trademarks, trademark registrations, applications for trademark registrations, copyrights, copyright registrations, certification marks, industrial designs, technical expertise, research data and other similar property and the registrations and applications for registration thereof owned by the Seller or, where not owned, used by the Seller in its business the Business and all goodwill associated thereto and all licenses and other agreements to which the Seller is a party (as licensor or licensee) or by which the Seller is bound relating to any of the foregoing kinds of property or rights to any "know-how" or disclosure or use of ideas (collectively, the "Intangible Property");
(x) all transferable approvals, authorizations, certifications, consents, variances, permissions, licenses and permits to or from, or filings, notices or recordings to or with, federal, state, foreign, and local governmental authorities as held or effected by the Seller in connection with the Assets;
(xi) all of the Seller's goodwill and the exclusive right to use the names of the Seller as all or part of a corporate name;
(xii) except as specifically provided in Subsection Section 1.1(b) hereof, all other assets, properties, claims, rights and interests of the Seller which relate to the Business and exist on the Closing Datedate hereof, of every kind and nature and description, whether tangible or intangible, real, personal or mixed; and
(xiii) cash or cash equivalents ("Cash").
(b) Notwithstanding the provisions of paragraph (aSection 1.1(a) above, the assets to be transferred to the Buyer under this Agreement shall not include (i) any of Seller's rights or consideration under this Agreement, or (ii) any refunds of federal, state, foreign or local income or other tax paid by the Seller, or (iii) any insurance policies currently held by the Seller and related premium agreements for general liability, product liability and workers compensation insurance for periods prior to the date hereof, or (iv) the financial books and records of the Seller (it being understood that the Seller shall make such financial books and records available at the reasonable request of the Buyer), or (v) those assets listed on Schedule 1.1(ii1.1(b) attached hereto (collectively, the "Excluded Assets"). ---------------.
(c) The Inventory, Accounts Receivable, Contract Rights, Fixed Assets, Intangible Property Property, Cash and other properties, assets and business of the Seller described in paragraph (aSection 1.1(a) above, other than the Excluded Assets, shall be referred to collectively as the "Assets."
Appears in 1 contract
Sale and Delivery of the Assets. 1.1 Delivery of the Assets. ----------------------
(a) Subject to and upon the terms and conditions of this Agreement, except as specifically provided in Section 1.1(b) hereof, at the closing of the transactions contemplated by this Agreement (the "ClosingCLOSING"), the Seller shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, free and clear of all liens, liabilities, security interests, leasehold interests and encumbrances of any nature whatsoever (except as otherwise expressly provided herein), all of the following properties, assets and other claims, rights and interestsinterests of the Seller or which are used in the Business of whatever kind, character or description, whether real, personal or mixed, tangible or intangible, wherever situated, including without limitation:
(i) all inventories of raw materials, work in process, goods in transit (i.e., inventories purchased by, but not delivered to, the Seller), finished goods, office supplies, maintenance supplies, packaging materials, spare parts and similar items of the Seller (collectively, the "InventoryINVENTORY") which exist on the Closing Date (as defined below);
(ii) all accounts, accounts receivable, notes receivable and notes receivable existing on the Closing Date which are payable to the Seller, (including any security held by the Seller for the payment thereof) (collectively, but excluding any account, account receivable, note or note receivable payable by any affiliate (as such term is defined in the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder) of Seller ("Affiliate") to the Seller (the accounts, accounts receivable, notes and notes receivable, including any related security therein, to be transferred to the Buyer pursuant hereto are collectively referred to herein as the "Accounts ReceivableACCOUNTS RECEIVABLE");
(iii) all those prepaid expenses, deposits, bank accounts and other similar assets of the Seller existing on the Closing Date, including the cash represented by such assets;expenses set forth in Schedule 1.1(a)(iii); --------------------
(iv) all rights of the Seller under the contracts, agreements, leases, licenses licenses, purchase orders, customer sales agreements and other instruments set forth on Schedules 2.11 Schedule 2.9(b) and 2.16 ----------------------- Schedule 2.13(a) attached hereto (collectively, the --------------- ---------------- "Contract RightsCONTRACT RIGHTS");
(v) all Permits (as defined in Section 2.17) necessary to conduct the business of the Seller;
(vi) all books, records and customer payment records; accounts, correspondence, ; customer lists; production records, ; technical, accounting, manufacturing and procedural manuals, customer lists, ; employment and personnel records; and other useful business records, studies, reports or summaries relating to any environmental conditions or consequences of any operation, present or former, as well as all studies, reports or summaries relating to any environmental aspect or the general condition of the Assetsincluding electronic media, and any confidential or other information which has been reduced to writing writing, utilized in the conduct of or relating to the Business or arising out of the business of Assets (as hereinafter defined), subject to the Seller's right to retain copies thereof which the Seller reasonably requires for its ongoing operation, winding-up or dissolution;
(viivi) all rights of the Seller under express or implied warranties from the suppliers of the SellerAssets to the extent transferable (but excluding such rights insofar as the same pertain to liabilities retained by the Seller hereunder);
(viiivii) the motor vehicles and other rolling stock owned by the Seller listed on the Closing Date;Schedule 1.1(a)(vii); --------------------
(ixviii) all of the machinery, equipment, tools, production reels and spoolsdies, tooling, dies, production fixtures, maintenance machinery and equipment, computers, telecommunication systems, fittings and other office equipment, furniture, leasehold improvements and construction in progress owned by the Seller on the Closing Date date hereof whether or not reflected as capital assets in the accounting records of the Seller which are owned by the Seller and used or useful in the Business including but not limited to all of the foregoing located at the locations set forth on Schedule -------- 1.1
(a) (viii) (collectively, the "Fixed AssetsFIXED ASSETS");; ------------
(xix) all of the Seller's right, title and interest of the Seller in and to all intangible property rightsrights relating to the Business, including but not limited to inventions, discoveries, trade secrets, processes, formulas, know-how, United States and foreign patents, patent applications, trade names, including but not limited to the name "Film MicroelectronicsProgress Graphics, Inc." or any derivation thereofthereof and those names listed on Schedule 2.20 attached hereto, trademarks, trademark -------------- registrations, applications for trademark registrations, copyrights, copyright registrations, certification marks, industrial designs, technical expertise, research data and other similar property and the registrations and applications for registration thereof owned by the Seller or, where not owned, used by the Seller in its business the Business and all goodwill associated therewith and all licenses and other agreements to which the Seller is a party (as licensor or licensee) or by which the Seller is bound relating to any of the foregoing kinds of property or rights to any "know-how" or disclosure or use of ideas (collectively, the "Intangible PropertyINTANGIBLE PROPERTY");
(x) all transferable approvals, authorizations, certifications, consents, variances, permissions, licenses and permits to or from, or filings, notices or recordings to or with, federal, state, foreign, and local governmental authorities as held or effected by the Seller in connection with the Assets;
(xi) all of the Seller's goodwill and the exclusive right to use the names of the Seller as all or part of a corporate name;
(xii) except as specifically provided in Subsection Section 1.1(b) hereof, all other assets, properties, claims, rights and interests of the Seller which relate to the Business and exist on the Closing Datedate hereof, of every kind and nature and description, whether tangible or intangible, real, personal or mixed;
(xiii) all bank accounts of the Business; and
(xiv) cash or cash equivalents ("CASH").
(b) Notwithstanding the provisions of paragraph (aSection 1.1(a) above, the assets to be transferred to the Buyer under this Agreement shall not include (i) any of Seller's rights or consideration under this Agreement, or (ii) any refunds of federal, state, foreign or local income or other tax paid by the Seller, or (iii) any insurance policies currently held by the Seller and related premium agreements for general liability, product liability and workers compensation insurance for periods prior to the date hereof, or (iv) any real estate owned by the Selling Parties or any of their respective affiliates, and any improvements made to such real estate, or (v) those assets listed on Schedule 1.1(ii) attached hereto (the "Excluded Assets"). ---------------
(c) The Inventory, Accounts Receivable, Contract Rights, Fixed Assets, Intangible Property and other properties, assets and business of the Seller described in paragraph (a) above, other than the Excluded Assets, shall be referred to collectively as the "Assets."1.1
Appears in 1 contract
Sale and Delivery of the Assets. 1.1 Delivery of the Assets. ----------------------
(a) Subject to and upon the terms and conditions of this Agreement, at the closing of the transactions contemplated by this Agreement (the "Closing"), the Seller shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, the following properties, assets and other assets, claims, rights and interests:
(i) all inventories of raw materialsinventories, software development work in process, finished goods, office supplies, maintenance supplies, packaging materials, spare parts and similar items of the Seller (collectively, the "Inventory") which exist on the Closing Delivery Date (as defined belowhereinafter defined);
(ii) all cash, accounts, accounts receivable, notes and notes receivable existing on the Closing Delivery Date which are payable to the Seller, including any security held by the Seller for the payment thereof, but excluding any account, account receivable, note or note receivable payable by any affiliate (as such term is defined in the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder) of Seller ("Affiliate") thereof to the Seller (the accounts, accounts receivable, notes and notes receivable, including any related security therein, to be transferred to the Buyer pursuant hereto are collectively referred to herein as the "Accounts ReceivableAccounts");
(iii) all prepaid expenses, deposits, interests in bank accounts and other similar assets of the Seller existing on the Closing Delivery Date, including the cash represented by such assetsassets in excess of the amount of cash on deposit to cover checks written against any such accounts;
(iv) all rights of the Seller under the contracts, agreements, leases, licenses and other instruments set forth on Schedules 2.11 and 2.16 ----------------------- Schedule 2.13 attached hereto (collectively, the "Contract Rights");; -------------
(v) all Permits (as defined in Section 2.17) necessary to conduct the business of the Seller;
(vi) all books, records and accounts, correspondence, production records, technical, accounting, manufacturing and procedural manuals, customer lists, employment records, studies, reports or summaries relating to any environmental conditions or consequences of any operation, present or former, as well as all studies, reports or summaries relating to any environmental aspect or the general condition of the Assets, and any confidential information which has been reduced to writing relating to or arising out of the business of the Seller;
(viivi) all rights of the Seller under express or implied warranties from the suppliers of the Seller;
(viii) the motor vehicles and other rolling stock owned by the Seller on the Closing Date;
(ix) all of the machinery, equipment, tools, production reels and spools, tooling, dies, production fixtures, maintenance machinery and equipment, furniture, leasehold improvements and construction in progress owned by the Seller on the Closing Date whether or not reflected as capital assets in the accounting records of the Seller (collectively, the "Fixed Assets");
(xvii) all of the Seller's right, title and interest in and to the Seller Intellectual Property (as defined in Section 2.16) and all other intangible property rights, including but not limited to inventionsthe trade names "Integrated Cash Management Services, discoveriesInc.", trade secrets"ICM Electronic Banking Services, processesInc.", formulas, know-how, United States and foreign patents, patent applications, trade names, including the name "Film MicroelectronicsICM" or any derivation thereof, trademarks, trademark registrations, applications for trademark registrations, copyrights, copyright registrations, owned or, where not owned, used by the Seller in its business and all licenses and other agreements to which the Seller is a party (as licensor or licensee) or by which the Seller is bound relating to any of the foregoing kinds of property or rights to any "know-how" or disclosure or use of ideas (collectively, the "Intangible Property");; and
(xiviii) except as specifically provided in Subsection 1.1(b) hereof, all other assets, properties, claims, rights and interests of the Seller which exist on the Closing Delivery Date, of every kind and nature and description, whether tangible or intangible, real, personal or mixed; provided, that the Buyer may in its sole discretion elect not to assume any material contract that has not been set forth on Schedule 2.13 (the "Post-Closing Assigned Contracts").
(b) Notwithstanding the provisions of paragraph (a) above, the assets to be transferred to the Buyer under this Agreement shall not include those assets listed on Schedule 1.1(ii) 1.1 attached hereto (the "Excluded ------------ Assets"). ---------------; provided, that after the Delivery Date, the Buyer may, in its sole discretion, designate any or all Excluded Assets as a Post-Closing Assigned Contract;
(c) The Inventory, Accounts ReceivableAccounts, Contract Rights, Fixed AssetsIntangible Property, Intangible Property Post-Closing Assigned Contracts and other properties, assets and business of the Seller described in paragraph (a) above, other than the Excluded Assets, shall be referred to collectively as the "Assets."
Appears in 1 contract
Samples: Asset Purchase Agreement (Bottomline Technologies Inc /De/)
Sale and Delivery of the Assets. Bankruptcy Provisions ------------------------------------------------------
1.1 Sale and Delivery of the Assets. ----------------------
(a) Subject to and upon the terms and conditions of this Agreement, at the closing of the transactions contemplated by this Agreement (the "Closing"), the Seller shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, the following properties, assets and other claims, rights and interests:-------------------------------
(i) all inventories of raw materials, work in process, finished goods, office supplies, maintenance supplies, packaging materials, spare parts and similar items of the Seller Setter (collectively, the "Inventory") --------- which exist on the Closing Date (as defined below);
(ii) all accounts, accounts receivable, notes and notes receivable existing on the Closing Date which are payable to the Seller, including any security held by the Seller for the payment thereof, but excluding any account, account receivable, note or note receivable payable by any affiliate (as such term is defined in the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder) of Seller ("Affiliate") to the Seller thereof (the accounts, accounts receivable, notes and notes receivable, including any related security therein, to be transferred to the Buyer pursuant hereto are collectively referred to herein as the "Accounts Receivable");. -------------------
(iii) all prepaid expenses, deposits, bank accounts customer prepayments and other similar assets of the Seller existing on the Closing Date, including the cash represented by such assets;
(iv) all rights of the Seller under the contracts, agreements, leases, insurance policies, licenses (including but not limited to licenses with respect to Intangible Property) and other instruments set forth on Schedules 2.11 and 2.16 ----------------------- Schedule 2.15 attached hereto (collectively, the "Contract Rights");; ------------- ---------------
(v) all Permits (as defined in Section 2.17) necessary to conduct the business of the Seller;
(vi) all books, records and accounts, correspondence, production records, technical, accounting, manufacturing and procedural manuals, customer lists, employment records, studies, reports or summaries relating to any environmental conditions or consequences of any operation, present or former, as well as all studies, reports or summaries relating to any environmental aspect or the general condition of the Assets, and any confidential information which has been reduced to writing relating to or arising out of the business of the Seller;.
(viivi) all rights of the Seller under express or implied warranties from the suppliers of the Seller;
(viii) the motor vehicles and other rolling stock owned by the Seller on the Closing Date;
(ixvii) all of the machinery, equipment, tools, production reels and spools, tooling, dies, production fixtures, maintenance machinery and equipment, furniture, leasehold improvements and construction in progress owned by the Seller on the Closing Date whether or not reflected as capital assets in the accounting records of the Seller (collectively, the "Fixed Assets");; ------------
(xviii) all of the Seller's right, title and interest in and to all intangible property rightsrights owned, or licensed to Seller, and used by the Seller in the Business, including but not limited to: all technical and commercial information, data and documents of whatever kind, and in whatever form or medium, relating to or useful for phytoremediation, including but not limited to inventions, discoveries, trade secrets, formulas, databases, drawings, specifications, photographs, samples, models, processes, formulasprocedures, know-howreports and correspondence, including the underlying copyright in works of authorship embodying the foregoing, owned by Seller or which Seller otherwise may lawfully disclose to Buyer; every United States and foreign patent that is owned by Seller, or which is licensed to Seller, as well as all patents issued on or claiming priority from an application filed prior to ninety days after the Closing Date, including but not limited to any later filed continued prosecution, continuations, substitutions, or divisionals thereof, and any reissues or reexaminations of such patents, including but not limited to the patents and any patents issuing from any patent applications, application listed in Schedule 2.22 attached hereto; trade names, including but not limited to the name "Film MicroelectronicsPhytotech, Inc." or any derivation thereof, ; trademarks, ; trademark registrations, ; applications for trademark registrations, ; copyrights, ; and copyright registrations, owned or, where not owned, used by the Seller in its business and all licenses and other agreements to which the Seller is a party (as licensor or licensee) or by which the Seller is bound relating to any of the foregoing kinds of property or rights to any "know-how" or disclosure or use of ideas registrations (collectively, the "Intangible Property");; and -------------------
(xiix) except as specifically provided in Subsection 1.1(b) hereof, all other assets, properties, claims, rights and interests of the Seller which exist on the Closing Date, of every kind and nature and description, whether tangible or intangible, real, personal or mixed.
(b) Notwithstanding the provisions of paragraph (a) above, the assets to be transferred to the Buyer under this Agreement shall not include those assets listed on Schedule 1.1(ii) 1.1 attached hereto (the "Excluded Assets"). ------------ ---------------
(c) The Inventory, Accounts Receivable, Contract Rights, Fixed Assets, Intangible Property and other properties, assets and business of the Seller described in paragraph (a) above, other than the Excluded Assets, shall be referred to collectively as the "Assets."
Appears in 1 contract
Sale and Delivery of the Assets. 1.1 Delivery of the Assets. ----------------------
(a) Subject to and upon the terms and conditions of this Agreement, at the closing of the transactions contemplated by this Agreement (the "Closing"), the Seller shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, the following properties, assets and other claims, rights and interestsinterests related to the Business:
(i) all inventories of raw materialsinventories, work in processvideotapes, finished goods, office supplies, maintenance supplies, packaging materials, spare parts and similar items of the Seller (collectively, the "Inventory") which exist on the Closing Date (as defined below);
(ii) all accounts, accounts receivable, notes and notes receivable existing on the Closing Date which are payable to the Seller, including any security held by the Seller for the payment thereof, but excluding any account, account receivable, note or note receivable payable by any affiliate thereof (as such term is defined in the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder) of Seller ("Affiliate") to the Seller (the accounts, accounts receivable, notes and notes receivable, including any related security therein, to be transferred to the Buyer pursuant hereto are collectively referred to herein as the "Accounts Receivable");
(iii) all prepaid expenses, deposits, bank accounts and other similar assets of the Seller existing on the Closing Date, including the cash represented by such assets, but excluding the cash of Seller held in Seller's bank accounts or at the Stores, as defined below (other than the $600 per store required to be transferred to Buyer pursuant to Section 7.10);
(iv) all rights of the Seller under the contracts, agreements, leases, licenses and other instruments set forth on Schedules 2.11 and SCHEDULE 2.16 ----------------------- attached hereto (collectively, the "Contract Rights");
(v) all Permits (as defined in Section 2.17) necessary to conduct the business of the Seller;
(vi) all books, records and accounts, correspondence, production records, technical, accounting, manufacturing and procedural manuals, customer lists, employment records, studies, reports or summaries relating to any environmental conditions or consequences of any operation, present or former, as well as all studies, reports or summaries relating to any environmental aspect or the general condition of the Assets, and any confidential information which has been reduced to writing relating to or arising out of the business of the SellerBusiness;
(viivi) all rights of the Seller under express or implied warranties from the suppliers of the Seller;
(viii) the motor vehicles and other rolling stock owned by the Seller on the Closing Date;
(ixvii) all of the machinery, equipment, tools, production reels and spools, tooling, dies, production fixtures, maintenance machinery and equipment, furniture, leasehold improvements and construction in progress owned by the Seller on the Closing Date whether or not Date, which are reflected as "fixed assets" or "capital assets assets" in the accounting records of the Seller (collectively, the "Fixed Assets");
(xviii) all of the Seller's right, title and interest in and to all intangible property rights, including but not limited to inventions, discoveries, trade secrets, processes, formulas, know-how, United States and foreign patents, patent applications, trade names, including the name "Film MicroelectronicsPicture Show" or any derivation thereof, trademarks, trademark registrations, applications for trademark registrations, copyrights, copyright registrations, owned or, where not owned, used by the Seller in its business and all licenses and other agreements to which the Seller is a party (as licensor or licensee) or by which the Seller is bound relating to any of the foregoing kinds of property or rights to any "know-how" or disclosure or use of ideas (collectively, the "Intangible Property");; and
(xiix) except as specifically provided in Subsection 1.1(b) hereof, all other assets, properties, claims, rights and interests of the Seller which exist on the Closing Date, of every kind and nature and description, whether tangible or intangible, real, personal or mixed.
(b) Notwithstanding the provisions of paragraph (a) above, the assets to be transferred to the Buyer under this Agreement shall not include any motor vehicles owned, leased or operated by the Seller, or those assets listed on Schedule 1.1(iiSCHEDULE 1.1(b) attached hereto or the Seller's assets which relate solely to the Excluded Stores, as described in Section 1.1(c) below (the "Excluded Assets"). ---------------.
(c) The Inventory, Accounts Receivable, Contract Rights, Fixed Assets, Intangible Property and other properties, assets and business of the Seller described in paragraph (a) above, other than the Excluded Assets, shall be referred to collectively as the "Assets." The Assets relate to the five retail video stores identified on SCHEDULE I attached hereto, which constitute all of the retail video stores in which Seller or the Principal has an interest except for the Excluded Stores, as defined below. Such stores are sometimes hereinafter referred to collectively as the "Stores." In addition to the Stores, the Principal or his Affiliates owns and operates (or is in the process of developing) the retail video stores described on SCHEDULE II attached hereto (the "Excluded Stores").
Appears in 1 contract
Samples: Asset Purchase Agreement (West Coast Entertainment Corp)
Sale and Delivery of the Assets. 1.1 Delivery of the Assets. ----------------------
(a) Subject to and upon the terms and conditions of this Agreement, except as specifically provided in Section 1.1(b) hereof, at the closing of the transactions contemplated by this Agreement (the "ClosingCLOSING"), the Seller shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, free and clear of all liens, liabilities, security interests, leasehold interests and encumbrances of any nature whatsoever (except as otherwise expressly provided herein), all of the following properties, assets and other claims, rights and interestsinterests of the Seller or which are used in the Business of whatever kind, character or description, whether real, personal or mixed, tangible or intangible, wherever situated, including without limitation:
(i) all inventories of raw materials, work in process, goods in transit (i.e., inventories purchased by, but not delivered to, the Seller), finished goods, office supplies, maintenance supplies, packaging materials, spare parts and similar items of the Seller (collectively, the "InventoryINVENTORY") which exist on the Closing Date (as defined below);
(ii) all accounts, accounts receivable, notes receivable and notes receivable existing on the Closing Date which are payable to the Seller, (including any security held by the Seller for the payment thereof) (collectively, but excluding any account, account receivable, note or note receivable payable by any affiliate (as such term is defined in the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder) of Seller ("Affiliate") to the Seller (the accounts, accounts receivable, notes and notes receivable, including any related security therein, to be transferred to the Buyer pursuant hereto are collectively referred to herein as the "Accounts ReceivableACCOUNTS RECEIVABLE");
(iii) all those prepaid expenses, deposits, bank accounts and other similar assets of the Seller existing on the Closing Date, including the cash represented by such assets;expenses set forth in Schedule 1.1(a) --------------- (iii); -----
(iv) all rights of the Seller under the contracts, agreements, leases, licenses licenses, purchase orders, customer sales agreements and other instruments set forth on Schedules 2.11 and 2.16 ----------------------- Schedule 2.13(a) attached hereto (collectively, the "Contract RightsCONTRACT RIGHTS");; ---------------
(v) all Permits (as defined in Section 2.17) necessary to conduct the business bank accounts of the SellerBusiness and other assets listed on Schedule 2.9;
(vi) all books, records and ; payment records; accounts, ; customer lists; environmental reports or studies; correspondence, ; production records, ; technical, accounting, manufacturing and procedural manuals; engineering data; development and design data; plans, customer listsblueprints, specifications and drawings; employment and personnel records; and other useful business records, studies, reports or summaries relating to any environmental conditions or consequences of any operation, present or former, as well as all studies, reports or summaries relating to any environmental aspect or the general condition of the Assetsincluding electronic media, and any confidential or other information which has been reduced to writing writing, utilized in the conduct of or relating to the Business or arising out of the business of Assets as hereinafter defined), subject to the Seller's right to retain copies thereof which the Seller reasonably requires for its ongoing operation, winding-up or dissolution;
(vii) all rights of the Seller under express or implied warranties from the suppliers of the SellerAssets to the extent transferable (but excluding such rights insofar as the same pertain to liabilities retained by the Seller hereunder);
(viii) the motor vehicles and other rolling stock owned by the Seller listed on the Closing Date;Schedule 1.1(a)(viii); ---------------------
(ix) all of the machinery, equipment, tools, production reels and spoolsdies, tooling, dies, production fixtures, maintenance machinery and equipment, computers, telecommunication systems, fittings and other office equipment and furniture, leasehold improvements and construction in progress owned by the Seller on the Closing Date whether or not reflected as capital assets in the accounting records of the Seller which are owned by the Seller and used or useful in the Business including but not limited to all of the foregoing located at the locations set forth on Schedule 2.8 (collectively, the "Fixed AssetsFIXED ASSETS");; ------------
(x) all of the Seller's right, title and interest of the Seller in and to all intangible property rightsrights relating to the Business, including but not limited to inventions, discoveries, trade secrets, processes, formulas, know-how, United States and foreign patents, patent applications, trade names, including the name "Film Microelectronics" or any derivation thereofand those names listed on Schedule 2.20 attached hereto, trademarks, trademark ------------- registrations, applications for trademark registrations, copyrights, copyright registrations, certification marks, industrial designs, technical expertise, research data and other similar property and the registrations and applications for registration thereof owned by the Seller or, where not owned, used by the Seller in its business the Business and all goodwill associated therewith and all licenses and other agreements to which the Seller is a party (as licensor or licensee) or by which the Seller is bound relating to any of the foregoing kinds of property or rights to any "know-how" or disclosure or use of ideas (collectively, the "Intangible PropertyINTANGIBLE PROPERTY");
(xi) all transferable approvals, authorizations, certifications, consents, variances, permissions, licenses and permits to or from, or filings, notices or recordings to or with, federal, state, foreign, and local governmental authorities as held or effected by the Seller in connection with the Assets;
(xii) all of the Seller's goodwill and the exclusive right to use the names of the Seller as all or part of a corporate name;
(xiii) except as specifically provided in Subsection Section 1.1(b) hereof, all other assets, properties, claims, rights and interests of the Seller which relate to the Business and exist on the Closing Datedate hereof, of every kind and nature and description, whether tangible or intangible, real, personal or mixed; and
(xiv) cash or cash equivalents ("CASH").
(b) Notwithstanding the provisions of paragraph (aSection 1.1(a) above, the assets to be transferred to the Buyer under this Agreement shall not include (i) any of Seller's rights or consideration under this Agreement, or (ii) any refunds of federal, state, foreign or local income or other tax paid by the Seller, or (iii) any insurance policies (including life insurance policies) currently held by the Seller and related premium agreements for general liability, product liability and workers compensation insurance for periods prior to the date of Closing, (iv) any real estate or leases, subleases, licensing or other interests relating to real property (including proceeds or consideration for the surrender thereof and the return of security deposits related thereto), or (v) those assets listed on Schedule 1.1(ii1.1(b) attached hereto -------------- (collectively, the "Excluded AssetsEXCLUDED ASSETS"). ---------------.
(c) The Inventory, Accounts Receivable, Contract Rights, Fixed Assets, Intangible Property Property, Cash and other properties, assets and business of the Seller described in paragraph (aSection 1.1(a) above, other than the Excluded Assets, shall be referred to collectively as the "AssetsASSETS."
Appears in 1 contract
Sale and Delivery of the Assets. 1.1 Delivery of the Assets. ----------------------
(a) Subject to and upon the terms and conditions of this Agreement, except as specifically provided in Section 1.1(b) hereof, at the closing of the transactions contemplated by this Agreement (the "Closing"), the Seller shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the Seller, free and clear of all liens, liabilities, security interests, leasehold interests and encumbrances of any nature whatsoever (except as otherwise expressly provided herein), all of the following properties, assets and other claims, rights and interestsinterests of the Seller which are necessary to conduct the Business as it is conducted as of the date hereof of whatever kind, character or description, whether real, personal or mixed, tangible or intangible, wherever situated, including without limitation:
(i) all inventories of raw materials, work in process, goods in transit (i.e., inventories purchased by, but not delivered to, the Seller), finished goods, office supplies, maintenance supplies, packaging materials, spare parts and similar items of the Seller (collectively, the "Inventory") which exist on the Closing Date (as defined below);
(ii) all accounts, accounts receivable, notes and notes receivable existing on the Closing Date which are payable to the Seller, including any security held by the Seller for the payment thereof, but excluding any account, account receivable, note or note receivable payable by any affiliate (as such term is defined those prepaid expenses set forth in the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder) of Seller ("Affiliate") to the Seller (the accounts, accounts receivable, notes and notes receivable, including any related security therein, to be transferred to the Buyer pursuant hereto are collectively referred to herein as the "Accounts Receivable"Schedule 1.1(a)(ii);
(iii) all prepaid expenses, deposits, bank accounts and other similar assets of the Seller existing on the Closing Date, including the cash represented by such assets;
(iv) all rights of the Seller under the contracts, agreements, leases, licenses licenses, purchase orders, customer sales agreements and other instruments set forth on Schedules 2.11 Schedule 2.9(b) and 2.16 ----------------------- Schedule 2.13(a) attached hereto (collectively, the "Contract Rights");
(v) all Permits (as defined in Section 2.17) necessary to conduct the business of the Seller;
(viiv) all books, records and ; payment records; accounts, ; customer lists; environmental reports or studies; correspondence, ; production records, ; technical, accounting, manufacturing and procedural manuals; engineering data; development and design data; plans, customer listsblueprints, specifications and drawings; employment and personnel records; and other useful business records, studies, reports or summaries relating to any environmental conditions or consequences of any operation, present or former, as well as all studies, reports or summaries relating to any environmental aspect or the general condition of the Assetsincluding electronic media, and any confidential or other information which has been reduced to writing writing, utilized in the conduct of or relating to the Business or arising out of the business of Assets (as hereinafter defined), subject to the Seller's right to retain copies thereof which the Seller reasonably requires for its ongoing operation, winding-up or dissolution;
(viiv) all rights of the Seller under express or implied warranties from the suppliers of the SellerAssets to the extent transferable (but excluding such rights insofar as the same pertain to liabilities retained by the Seller hereunder);
(viiivi) the motor vehicles and other rolling stock owned by the Seller listed on the Closing DateSchedule 1.1(a)(vi);
(ixvii) all of the machinery, equipment, tools, production reels and spoolsdies, tooling, dies, production fixtures, maintenance machinery and equipment, computers, telecommunication systems, fittings and other office equipment, furniture, leasehold improvements and construction in progress owned by the Seller on the Closing Date date hereof whether or not reflected as capital assets in the accounting records of the Seller which are owned by the Seller and used or useful in the Business including, but not limited to, all of the foregoing located at the locations set forth on Schedule 1.l(a)(vii) (collectively, the "Fixed Assets");
(xviii) all of the Seller's right, title and interest of Seller in and to all intangible property rightsrights relating to the Business, including including, but not limited to to, inventions, discoveries, trade secrets, processes, formulas, know-how, United States and foreign patents, patent applications, trade names, including but not limited to the name names "Film MicroelectronicsThe Xxxxx Group, Inc." and "Micro Computer Systems, Inc.", or any derivation thereofthereof and those names listed on Schedule 2.20 attached hereto, trademarks, trademark registrations, applications for trademark registrations, copyrights, copyright registrations, certification marks, industrial designs, technical expertise, research data and other similar property and the registrations and applications for registration thereof owned by the Seller or, where not owned, used by the Seller in its business the Business and all goodwill associated thereto and all licenses and other agreements to which the Seller is a party (as licensor or licensee) or by which the Seller is bound relating to any of the foregoing kinds of property or rights to any "know-how" or disclosure or use of ideas (collectively, the "Intangible Property");
(ix) all transferable approvals, authorizations, certifications, consents, variances, permissions, licenses and permits to or from, or filings, notices or recordings to or with, federal, state, foreign, and local governmental authorities as held or effected by the Seller in connection with the Assets;
(x) all of the Seller's goodwill and the exclusive right to use the names of the Seller as all or part of a corporate name;
(xi) all accounts receivable and notes receivable set forth on Schedule 1.1(a)(xi) (including any security held by the Seller for the payment thereof) (collectively, the "Accounts Receivable");
(xii) any refunds of federal, state, foreign or local income or other tax paid by the Seller;
(xiii) cash or cash equivalents ("Cash"); and
(xiv) except as specifically provided in Subsection Section 1.1(b) hereof, all other assets, properties, claims, rights and interests of the Seller which relate to the Business and exist on the Closing Datedate hereof, of every kind and nature and description, whether tangible or intangible, real, personal or mixed.
(b) Notwithstanding the provisions of paragraph (aSection 1.1(a) above, the assets to be transferred to the Buyer under this Agreement shall not include (i) any of Seller's rights or consideration under this Agreement; (ii) any insurance policies currently held by the Seller and related premium agreements for general liability, product liability and workers compensation insurance for periods prior to the date hereof; or (iii) those assets listed on Schedule 1.1(ii1.1(b) attached hereto (collectively, the "Excluded Assets"). ---------------.
(c) The Inventory, Accounts Receivable, Contract Rights, Fixed Assets, Intangible Property Property, Accounts Receivable, Cash and other properties, assets and business of the Seller described in paragraph (aSection 1.1(a) above, other than the Excluded Assets, shall be referred to collectively as the "Assets."
Appears in 1 contract
Sale and Delivery of the Assets. 1.1 Delivery of the Assets. ----------------------
(a) Subject to and upon the terms and conditions of this Agreement, at the closing of the transactions contemplated by this Agreement (the "Closing"), the Seller Sellers shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the SellerSellers, the following properties, assets and other claims, rights and interests:
(i) all inventories of raw materialsinventories, work in processvideotapes, finished goods, office supplies, maintenance supplies, packaging materials, spare parts and similar items of the Seller Sellers (collectively, the "Inventory") which exist on the Closing Date (as defined below);
(ii) all accounts, accounts receivable, notes and notes receivable existing on the Closing Date which are payable to the SellerSellers, including any security held by the Seller Sellers for the payment thereof, but excluding any account, account receivable, note or note receivable payable by any affiliate thereof (as such term is defined in the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder) of Seller ("Affiliate") to the Seller (the accounts, accounts receivable, notes and notes receivable, including any related security therein, to be transferred to the Buyer pursuant hereto are collectively referred to herein as the "Accounts Receivable");; 7
(iii) all prepaid expenses, prepaid rent, prepaid insurance, deposits, bank accounts security deposits and other similar assets of the Seller Sellers existing on the Closing Date, including the cash represented by such assets;
(iv) all rights of the Seller Sellers under the contracts, agreements, leases, licenses and other instruments set forth on Schedules 2.11 and SCHEDULE 2.16 ----------------------- attached hereto (collectively, the "Contract Rights");
(v) all Permits (as defined in subject to the provisions of Section 2.17) necessary to conduct the business 10.4, copies of the Seller;
(vi) all books, records and accounts, correspondence, production records, technical, accounting, manufacturing and procedural manuals, customer lists, employment records, studies, reports or summaries relating to any environmental conditions or consequences of any operation, present or former, as well as all studies, reports or summaries relating to any environmental aspect or the general condition of the Assets, and any confidential information which has been reduced to writing relating to or arising out of the business Business, and originals of the Sellerall manuals and customer lists;
(viivi) all rights of the Seller Sellers under express or implied warranties from the suppliers of the SellerSellers;
(viii) the motor vehicles and other rolling stock owned by the Seller on the Closing Date;
(ixvii) all of the machinery, equipment, tools, production reels and spools, tooling, dies, production fixtures, maintenance machinery and equipment, furniture, leasehold improvements and construction in progress owned by the Seller Sellers on the Closing Date Date, regardless of whether or not reflected as "fixed assets" or "capital assets assets" in the accounting records of the Seller Sellers (collectively, the "Fixed Assets");
(xviii) all of the Seller's Sellers' right, title and interest in and to all intangible property rights, including but not limited to inventions, discoveries, trade secrets, processes, formulas, know-how, United States and foreign patents, patent applications, trade names, including the name "Film MicroelectronicsSuper Video Store", and the service mark "Xxre Movies, More Copies, More Fun!" or any derivation thereofof any of the foregoing, trademarks, trademark registrations, applications for trademark registrations, copyrights, copyright registrations, owned or, where not owned, used by the Seller Sellers (or any of them) in its business the Business and all licenses and other agreements to which the any Seller is a party (as licensor or licensee) or by which the any Seller is bound relating to any of the foregoing kinds of property or rights to any "know-how" or disclosure or use of ideas (collectively, the "Intangible Property");
(xiix) except as specifically provided in Subsection 1.1(b) hereof, all other assets, properties, claims, rights and interests of the Seller Sellers which exist on the Closing Date, of every kind and nature and description, whether tangible or intangible, real, personal or mixed.
(b) Notwithstanding the provisions of paragraph (a) above, the assets to be transferred to the Buyer under this Agreement shall not include those assets listed on Schedule 1.1(ii(i) attached hereto (the "Excluded Assets"). ---------------
(c) The Inventory, Accounts Receivable, Contract Rights, Fixed Assets, Intangible Property and other properties, assets and business cash of the Seller described in paragraph (a) aboveSellers, other than (x) an aggregate of $14,000 of cash on hand at the Excluded Assets, shall be referred to collectively Stores (as the "Assets."defined below) and (y) deposits and prepayments from
Appears in 1 contract
Samples: Asset Purchase Agreement (West Coast Entertainment Corp)
Sale and Delivery of the Assets. 1.1 Sale and Delivery of the U.S. Assets. ----------------------.
(a) Subject to and upon the terms and conditions of this Agreement, at the closing of the transactions contemplated by this Agreement (the "Closing"), the Seller Company shall sell, transfer, convey, assign and deliver to the Buyer, and the Buyer shall purchase from the SellerCompany, the following properties, assets and other claims, rights and interests:
(i) all inventories of raw materials, work in process, finished goods, office supplies, maintenance supplies, packaging materials, spare parts and similar items of the Seller (collectively, the "Inventory") which exist on the Closing Date (as defined below);
(ii) all accounts, accounts receivable, notes and notes receivable existing on the Closing Date which are payable to the Seller, including any security held by the Seller for the payment thereof, but excluding any account, account receivable, note or note receivable payable by any affiliate (as such term is defined in the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder) of Seller ("Affiliate") to the Seller (the accounts, accounts receivable, notes and notes receivable, including any related security therein, to be transferred to the Buyer pursuant hereto are collectively referred to herein as the "Accounts Receivable");
(iii) all prepaid expenses, deposits, bank accounts and other similar assets of the Seller existing on the Closing Date, including the cash represented by such assets;
(iv) all rights of the Seller under the contracts, agreements, leases, licenses and other instruments set forth on Schedules 2.11 and 2.16 ----------------------- attached hereto (collectively, the "Contract Rights");
(v) all Permits (as defined in Section 2.17) necessary to conduct the business of the Seller;
(vi) all books, records and accounts, correspondence, production records, technical, accounting, manufacturing and procedural manuals, customer lists, employment records, studies, reports or summaries relating to any environmental conditions or consequences of any operation, present or former, as well as all studies, reports or summaries relating to any environmental aspect or the general condition of the Assets, and any confidential information which has been reduced to writing relating to or arising out of the business of the Seller;
(vii) all rights of the Seller under express or implied warranties from the suppliers of the Seller;
(viii) the motor vehicles and other rolling stock owned by the Seller on the Closing Date;
(ix) all of the machinery, equipment, tools, production reels and spools, tooling, dies, production fixtures, maintenance machinery and equipment, furniture, leasehold improvements and construction in progress owned by the Seller on the Closing Date whether or not reflected as capital assets in the accounting records of the Seller (collectively, the "Fixed Assets");
(x) all of the SellerCompany's right, title and interest in and to all intangible property rightsof the U.S. Assets, including but not limited to inventionsconsisting of (x) the properties, discoveriesassets and other claims, trade secrets, processes, formulas, know-how, United States rights and foreign patents, patent applications, trade names, including the name "Film Microelectronics" or any derivation thereof, trademarks, trademark registrations, applications for trademark registrations, copyrights, copyright registrations, interests owned or, where not owned, used by the Seller Company that pertain to the Business and are described in its business and all licenses Subsections (i) through (x) below (except for those assets that are listed on Schedule 1.1(a) under the caption "Certain Excluded Assets"), (y) those properties, assets and other agreements claims, rights and interests that are listed on Schedule 1.1(a) under the caption "Certain Included Operating Assets" which pertain both to the Business and the Excluded Lines of Business but which the Seller is a party parties have agreed shall constitute Assets and (as licensor z) those properties, assets and other claims that are listed on Schedule 1.1(a) under the caption "Certain Included Administrative Assets" which are used in the Company's administrative functions and corporate overhead primarily for the support of the Business rather than primarily for the support of the Excluded Lines of Business or licensee) or by for general company-wide purposes, and which the Seller is bound relating to any of parties have agreed shall constitute Assets:
(i) the foregoing kinds of real property and interests therein, options or similar rights to any "know-how" or disclosure or use of ideas purchase real property and buildings, structures, facilities, fixtures and other improvements thereon owned by the Company that are listed on Schedule 1.1(a)(i) attached hereto (collectively, the "Intangible U.S. Real Property");
(xiii) except as specifically provided the machinery and equipment, fixtures, furniture, leasehold improvements, construction in Subsection 1.1(b) hereofprogress, all other assetsmotor vehicles and spare parts, properties, claims, rights and interests of owned by the Seller which exist Company on the Closing Date, of every kind and nature and description, whether tangible or intangible, real, personal or mixed.
Date (b) Notwithstanding the provisions of paragraph (a) above, the assets to be transferred to the Buyer under this Agreement shall not include those assets listed on Schedule 1.1(ii) attached hereto (the "Excluded Assets"). ---------------
(c) The Inventory, Accounts Receivable, Contract Rights, Fixed Assets, Intangible Property and other properties, assets and business of the Seller described as defined in paragraph (a) above, other than the Excluded Assets, shall be referred to collectively as the "Assets."1
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