Sale and Purchase of Assets. Subject to the terms and conditions of this Agreement, at the Closing, the applicable Seller shall sell, assign, transfer, deliver and convey to the St. Maarten Buyer or the U.S. Buyer, as applicable, and the St. Maarten Buyer or the U.S. Buyer, as applicable, will purchase, acquire and accept from the applicable Seller all of the applicable Seller’s right, title and interest in the following assets (but excluding the Excluded Assets) (collectively, the “Seller Assets”), free and clear of all Liens (other than Permitted Liens): (i) all Receivables held by the Sellers, including all Receivables reflected on the Closing Statement; (ii) all Transferred Intellectual Property, including all Transferred Intellectual Property set forth in Section 4.21(a) of the Disclosure Schedule, along with all income, royalties, damages and payments due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world); (iii) all rights under the Contracts set forth on Schedule 1.1(a)(iii) attached hereto (the “Purchased Contracts”); (iv) the Seller Transferred Owned Real Property; (v) the Seller Transferred Leased Real Property (and the leases related thereto); (vi) all improvements and all machinery, equipment, fixtures and trade fixtures; (vii) all furniture, office supplies, production supplies and any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property of any kind; (viii) all prepayments, prepaid expenses and deposits (other than those related to Excluded Assets or Retained Liabilities) and advances (including employee advances), including all prepayments, prepaid expenses and deposits and advances reflected on the Closing Statement; (ix) all claims, refunds, credits, causes of action, rights of recovery and rights of set-off of any kind (other than those related to Excluded Assets or Retained Liabilities), whether arising by way of counterclaim or otherwise; (x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Business; (xi) all rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets; (xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials; (xiii) all insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities (including any such benefits arising from or related to the Insurance Policies); (xiv) all Benefit Plans and all of the rights and powers of the Sellers under and with respect to such Benefit Plans, and any and each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 (the “Transferred Benefit Plans”); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall be transferred to the Buyers and will be assumed by the Buyers; (xv) all Permits, including all Permits set forth in Section 4.18 of the Disclosure Schedule (the “Transferred Permits”); (xvi) all goodwill of the Business as a going concern; (xvii) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Transferred Intellectual Property (collectively, “Books and Records”); and (xviii) all other properties, assets, rights and interests of any kind, whether tangible or intangible, real or personal, of a type not described in the foregoing clauses (i)-(xvii) that are owned by the Sellers or in which the Sellers have an interest and which are not Excluded Assets.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Devry Inc), Asset Purchase Agreement (Devry Inc)
Sale and Purchase of Assets. Subject to the terms and conditions of this Agreement, at At the Closing, the applicable each Asset Seller shall sell, assign, transfer, transfer and deliver and convey to the St. Maarten Buyer or the U.S. Buyer, as applicablePurchaser, and the St. Maarten Buyer or the U.S. Buyer, as applicable, will purchase, acquire and accept Purchaser shall purchase from the applicable Seller all of the applicable such Asset Seller’s right, title and interest in the following assets (but excluding the Excluded Assets) (collectively, the “Seller Assets”), free and clear of all Liens (other than Permitted Liens):
(i) all Receivables held by the Sellers), including all Receivables reflected on the Closing Statement;
(ii) all Transferred Intellectual Property, including all Transferred Intellectual Property terms and subject to the conditions and exclusions set forth in this Agreement, all (a) Internet domain names of such Asset Seller primarily used or held for use in the Business, (b) the Franchise Agreements, but only to which such Asset Seller is a party and listed on Section 4.21(a2.14(a) of the Company Disclosure Schedule, along with all income, royalties, damages and payments due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world);
(iii) all rights under the Contracts set forth on Schedule 1.1(a)(iii) attached hereto (the “Purchased Contracts”);
(ivc) the accounts receivable of such Asset Seller Transferred Owned Real Property;
arising from such Asset Seller’s Franchise Agreements, (v) the Seller Transferred Leased Real Property (and the leases related thereto);
(vi) all improvements and all machinery, equipment, fixtures and trade fixtures;
(vii) all furniture, office supplies, production supplies and any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property of any kind;
(viii) all prepayments, prepaid expenses and deposits (other than those related to Excluded Assets or Retained Liabilities) and advances (including employee advances), including all prepayments, prepaid expenses and deposits and advances reflected on the Closing Statement;
(ixd) all claims, refunds, credits, causes of action, rights of recovery and recovery, rights of set-off off, and warranties of such Asset Seller (at any kind time or in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or otherwise) to the extent relating to the Business or any Purchased Assets, and all defenses and rights of offset or counterclaim to the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and (e) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectively, the “Purchased Assets”), including those items set forth on Section 1.2 of the Company Disclosure Schedule. Purchaser shall not purchase, and the Purchased Assets shall not include, any assets, rights or properties of the Asset Sellers other than those related to Excluded Assets or Retained Liabilities), whether arising by way of counterclaim or otherwise;
(x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Business;
(xi) all rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
(xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
(xiii) all insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities (including any such benefits arising from or related to the Insurance Policies);
(xiv) all Benefit Plans and all of the rights and powers of the Sellers under and with respect to such Benefit Plans, and any and each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 (the “Transferred Benefit Plans”); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall be transferred to the Buyers and will be assumed by the Buyers;
(xv) all Permits, including all Permits set forth in Section 4.18 of the Disclosure Schedule subsections (the “Transferred Permits”);
a) – (xvie) above (all goodwill of the Business as a going concern;
(xvii) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Transferred Intellectual Property (collectively, “Books and Records”); and
(xviii) all other properties, such assets, rights and interests of any kindproperties not being purchased, whether tangible or intangible, real or personal, of a type not described in the foregoing clauses (i)-(xvii) that are owned by the Sellers or in which the Sellers have an interest and which are not “Excluded Assets”).
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Red Lion Hotels CORP)
Sale and Purchase of Assets. Subject to the terms and conditions of this Agreement, at the Closing, the applicable Seller shall sell, assign, transfer, deliver and convey to the St. Maarten Buyer or the U.S. Buyer, as applicable, and the St. Maarten Buyer or the U.S. Buyer, as applicable, will purchase, acquire and accept from the applicable Seller all of the applicable Seller’s right, title and interest in the following assets (but excluding the Excluded Assets) (collectively, the “Seller Assets”), free and clear of all Liens (other than Permitted Liens):
): (i) all Receivables held by the Sellers, including all Receivables reflected on the Closing Statement;
; 1 (ii) all Transferred Intellectual Property, including all Transferred Intellectual Property set forth in Section 4.21(a) of the Disclosure Schedule, along with all income, royalties, damages and payments due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sxx xxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world);
; (iii) all rights under the Contracts set forth on Schedule 1.1(a)(iii) attached hereto (the “Purchased Contracts”);
; (iv) the Seller Transferred Owned Real Property;
; (v) the Seller Transferred Leased Real Property (and the leases related thereto);
; (vi) all improvements and all machinery, equipment, fixtures and trade fixtures;
; (vii) all furniture, office supplies, production supplies and any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property of any kind;
; (viii) all prepayments, prepaid expenses and deposits (other than those related to Excluded Assets or Retained Liabilities) and advances (including employee advances), including all prepayments, prepaid expenses and deposits and advances reflected on the Closing Statement;
; (ix) all claims, refunds, credits, causes of action, rights of recovery and rights of set-off of any kind (other than those related to Excluded Assets or Retained Liabilities), whether arising by way of counterclaim or otherwise;
; (x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Business;
; (xi) all rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
; (xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
; (xiii) all insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities (including any such benefits arising from or related to the Insurance Policies);
; (xiv) all Benefit Plans and all of the rights and powers of the Sellers under and with respect to such Benefit Plans, and any and each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 (the “Transferred Benefit Plans”); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall be transferred to the Buyers and will be assumed by the Buyers;
; 2 (xv) all Permits, including all Permits set forth in Section 4.18 of the Disclosure Schedule (the “Transferred Permits”);
; (xvi) all goodwill of the Business as a going concern;
; (xvii) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Transferred Intellectual Property (collectively, “Books and Records”); and
and (xviii) all other properties, assets, rights and interests of any kind, whether tangible or intangible, real or personal, of a type not described in the foregoing clauses (i)-(xvii) that are owned by the Sellers or in which the Sellers have an interest and which are not Excluded Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement
Sale and Purchase of Assets. Subject to On the terms and subject to the conditions of set forth in this Agreement, Sellers shall sell, assign, convey and transfer to SOLD, and SOLD shall purchase from Sellers, at the Closing, the applicable Seller shall sell, assign, transfer, deliver and convey to assets of Sellers comprising the St. Maarten Buyer or Business as such assets are more particularly described in this Section 2 (the U.S. Buyer, as applicable, and the St. Maarten Buyer or the U.S. Buyer, as applicable, will purchase, acquire and accept from the applicable Seller all of the applicable Seller’s right, title and interest in the following assets (but excluding the Excluded "Assets) (collectively, the “Seller Assets”"), free and clear of all Liens liens and encumbrances; provided that SOLD shall not purchase and acquire from Sellers the excluded assets described on Schedule 2 hereto (the "Excluded Assets"). The Assets to be sold, assigned, conveyed and transferred hereunder shall be all of the assets of Sellers other than Permitted Liens):
(i) all Receivables held by the SellersExcluded Assets, including the following:
2.1. All of Sellers' right, title and interest in and to the Websites, including the domain names of the Websites, the tradenames under which the Websites and the Business are operated, all Receivables reflected (except as excluded on Schedule 2) domain names owned by Sellers including those listed on Schedule 2.1, and all other intellectual property owned by Sellers and used or useful in the Closing Statementoperation of the Websites or the Business other than the Excluded Assets;
(ii) all Transferred Intellectual Property, including all Transferred Intellectual Property set forth in Section 4.21(a) 2.2. All of the Disclosure Schedule, along with all income, royalties, damages fixed assets and payments due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world);
(iii) all rights under the Contracts set forth equipment listed on Schedule 1.1(a)(iii) 2.2 attached hereto (the “Purchased Contracts”"Fixed Assets");
2.3. All of the books and records of the Sellers identified by SOLD within ten (iv10) days following the Closing pertaining solely to the Assets and Business, including files, statistics, financial information, operating data, sales, distribution and marketing information, information related to suppliers and related items, and such other and further information as is maintained by the Seller Transferred Owned Real Propertyrelating solely to the Assets and Business, but not including Sellers' corporate records or income tax records ("Books"); provided that Sellers shall retain copies of any original Books SOLD removes from Sellers' offices;
2.4. All of Sellers' lists of registered users of the Websites, which shall include such information regarding registered users as is maintained by Sellers (v) the Seller Transferred Leased Real Property ("Registered User Lists"). Such Registered User Lists shall be maintained by SOLD in accordance with the terms and the leases related thereto)conditions of any privacy policies set forth on Sellers' Websites;
(vi) 2.5. To the extent assignable, all improvements of Sellers' permits, licenses, consents and all machineryapprovals required under any applicable law, equipmentstatute, fixtures ordinance, code, rule or regulation, and trade fixtures;
(vii) all furniture, office supplies, production supplies and any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property of any kind;
(viii) all prepayments, prepaid expenses and deposits (other than those related required to Excluded Assets or Retained Liabilities) and advances (including employee advances), including all prepayments, prepaid expenses and deposits and advances reflected on the Closing Statement;
(ix) all claims, refunds, credits, causes of action, rights of recovery and rights of set-off of any kind (other than those related to Excluded Assets or Retained Liabilities), whether arising by way of counterclaim or otherwise;
(x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by operate the Business;
(xi) all rights under warranties, indemnities 2.6. Sellers' goodwill associated with the Assets and all similar rights against third parties to the extent related to any Purchased Assets;
(xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
(xiii) all insurance benefits, including rights and proceeds, arising from or relating to the Business, including the Purchased Assets exclusive right to use the name "ChannelSpace Entertainment" and all variations and derivations thereof;
2.7. Sellers' rights under those certain contracts identified on Schedule 2.7 attached hereto, as such schedule may be updated or modified by SOLD in SOLD's sole discretion prior to or at the Assumed Liabilities Closing by written notice to CSEI (including any such benefits arising from as so updated or modified, the "Assigned Contracts");
2.8. To the extent owned by Sellers, options for 2,000,000 shares of GavelNet, Inc. stock, options related to the Insurance PoliciesCopernicus search engine, Xxxxxxxxxxx.xxx options and RealMedia, Inc. options (collectively, the "Options"). CSEI represents and warrants that the Options constitute all options for the purcahse of securities owned by Sellers. SOLD acknowledges and agrees that the Options are being transferred to SOLD "as is" without any representations or warranties as to ownership, title, value or marketability;
2.9. The issued and outstanding capital stock of Discribe if SOLD in its sole discretion determines, by written notice to CSEI within forty-five (xiv45) all Benefit Plans and all of the rights and powers days following closing, to acquire such stock; and
2.10. Any other tangible or intangible assets of the Sellers under and with respect to such Benefit Plans, and any and each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement used or other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 (the “Transferred Benefit Plans”); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall be transferred to the Buyers and will be assumed by the Buyers;
(xv) all Permits, including all Permits set forth in Section 4.18 of the Disclosure Schedule (the “Transferred Permits”);
(xvi) all goodwill of the Business as a going concern;
(xvii) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Transferred Intellectual Property (collectively, “Books and Records”); and
(xviii) all other properties, assets, rights and interests of any kind, whether tangible or intangible, real or personal, of a type not described useful in the foregoing clauses (i)-(xvii) that are owned by Business, other than the Sellers or in which the Sellers have an interest and which are not Excluded Assets.
Appears in 1 contract
Sale and Purchase of Assets. Subject On the Closing Date (as hereinafter defined) and subject to the terms and conditions of contained in this Agreement, at the Closing, the applicable Seller shall sell, assign, transfer, assign and deliver and convey to the St. Maarten Buyer or the U.S. Buyer, as applicable, and the St. Maarten Buyer or the U.S. Buyer, as applicable, will shall purchase, acquire assume and accept from the applicable Seller Seller, free and clear of all of the applicable Seller’s liens and encumbrances, all right, title and interest in and to all of the following assets owned by Seller (but excluding the Excluded "Assets) (collectively, the “Seller Assets”), free and clear of all Liens (other than Permitted Liens"):
(ia) all Receivables held by Seller's interest in the Sellers, including all Receivables reflected on the Closing Statement;
one hundred and seven (ii107) all Transferred Intellectual Property, including all Transferred Intellectual Property set forth existing or pending leases for Seller's kiosk stores listed in Section 4.21(a) of the Disclosure Schedule, along with all income, royalties, damages and payments due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world);
(iii) all rights under the Contracts set forth on Schedule 1.1(a)(iii1(a) attached hereto (the “Purchased Contracts”);
(iv) the Seller Transferred Owned Real Property;
(v) the Seller Transferred Leased Real Property (hereto, and the leases related thereto);
(vi) all improvements and all machinery, equipment, fixtures and trade fixtures;
(vii) all furniture, office supplies, production supplies and for any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property of any kind;
(viii) all prepayments, prepaid expenses and deposits (other than those related locations as to Excluded Assets or Retained Liabilities) and advances (including employee advances), including all prepayments, prepaid expenses and deposits and advances reflected on the Closing Statement;
(ix) all claims, refunds, credits, causes of action, rights of recovery and rights of set-off of any kind (other than those related which an Additional Store Exercise is made pursuant to Excluded Assets or Retained Liabilities), whether arising by way of counterclaim or otherwise;
(x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Business;
(xi) all rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
(xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
(xiii) all insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities (including any such benefits arising from or related to the Insurance Policies);
(xiv) all Benefit Plans and all of the rights and powers of the Sellers under and with respect to such Benefit Plans, and any and each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 4 below (the “Transferred Benefit Plans”); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall be transferred to the Buyers and will be assumed by the Buyers;
(xv) all Permits, including all Permits set forth in Section 4.18 of the Disclosure Schedule (the “Transferred Permits”);
(xvi) all goodwill of the Business as a going concern;
(xvii) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Transferred Intellectual Property (collectively, “Books and Records”"Stores"); and
(xviiib) Store kiosks and any and all other propertiesleasehold improvements, fixtures, benches, point-of-sale registers, telephones, credit authorization devices, stools, safes, security panels and existing security systems at the Stores (all of which are being sold "as is, where is" without warranty or representation except as specifically set forth herein); except to the extent that Buyer in its discretion determines not to acquire any such assets; provided that Seller must consent, such consent not to be unreasonably withheld or delayed, to any decision by Buyer not to acquire a Store kiosk; provided that Buyer's covenant to dispose of such assets, rights including without limitation paying off or otherwise eliminating Seller's obligations under the leases for the Stores, at Buyer's sole cost and interests expense, shall be a permissible condition to the granting of Seller's consent hereunder. As to any kindpending Stores for which a kiosk has not yet been constructed, whether tangible or intangibleBuyer shall be responsible for constructing, real or personal, of a type not described in the foregoing clauses (i)-(xvii) that are owned by the Sellers or in which the Sellers have an interest installing and which are not Excluded Assetspaying for such kiosk.
Appears in 1 contract
Sale and Purchase of Assets. Subject to the terms and conditions of this Agreement, at (a) At the Closing, the applicable Seller shall agrees to sell, assign, transfertransfer or deliver, deliver and convey as the case may be, to the St. Maarten Buyer or the U.S. Buyer, as applicableand Xxxxx agrees to purchase and acquire from Seller free and clear of any Encumbrances, and the St. Maarten Buyer or the U.S. Buyer, as applicable, will purchase, acquire and accept from the applicable Seller all of the applicable Seller’s right, title and interest in in, to and under and under all of the following assets tangible and intangible assets, properties, and rights of every kind and nature and wherever located (but excluding other than the Excluded Assets) ), which relate to, or are used or held for use in connection with, the Tech Asset (collectively, the “Seller Acquired Assets”), free and clear of all Liens (other than Permitted Liens):including the following:
(i) all Receivables held by Assigned Contracts and all rights, benefits and interests thereunder from and after the Sellers, including all Receivables reflected on the Closing StatementClosing;
(ii) all Transferred Intellectual Property, including all Transferred the Seller Intellectual Property set forth and all files and disclosures relating thereto, and all goodwill associated therewith, licenses and sublicenses granted in Section 4.21(a) of the Disclosure Schedulerespect thereto and rights thereunder, along together with all income, royalties, damages and payments due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world)claims against third parties with respect thereto;
(iii) all rights under federal, state, local and foreign permits and authorizations issued by any Governmental Authority in respect of the Contracts set forth Tech Asset, which are held by Seller or his Affiliates, as applicable, including without limitation those listed on Schedule 1.1(a)(iii1.1(a)(vi) attached hereto (the “Purchased ContractsPermits”);
(iv) the Seller Transferred Owned Real Property;
(v) the Seller Transferred Leased Real Property (and the leases related thereto);
(vi) all improvements and all machinery, equipment, fixtures and trade fixtures;
(vii) all furniture, office supplies, production supplies and rights to any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property action of any kind;
(viii) all prepayments, prepaid expenses and deposits (other than those nature available to or being pursued by Seller to the extent related to Excluded Assets or Retained Liabilities) and advances (including employee advances)the Tech Asset, including all prepayments, prepaid expenses and deposits and advances reflected on the Closing Statement;
(ix) all claims, refunds, credits, causes of action, rights of recovery and rights of set-off of any kind (other than those related to Excluded Assets or Retained Liabilities)Acquired Assets, whether arising by way of counterclaim or otherwise;; and
(x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Business;
(xiv) all rights of Seller under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;Acquired Asset.
(xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
(xiiivi) all insurance benefits, including rights and proceeds, arising post-Closing from or relating to the BusinessAcquired Assets;
(vii) all goodwill, going concern value and other intangible rights with respect to the Acquired Assets (the “Goodwill”). Notwithstanding the foregoing, the Purchased transfer of the Acquired Assets or pursuant to this Agreement shall not include the Assumed Liabilities (including assumption of any such benefits arising from or Liability related to the Insurance PoliciesAcquired Assets unless the Buyer expressly assumes that Liability pursuant to Section 1.1(c).
(b) On the terms and subject to the conditions contained in this Agreement, Buyer shall not assume any Liabilities. All Liabilities are Excluded Liabilities.
(c) Seller and his Affiliates shall retain, and shall be responsible for paying, performing and discharging when due, and Buyer shall not assume and shall not be responsible to pay, perform or discharge, any Liabilities of Seller or his Affiliates, or any Liabilities of any kind or nature whatsoever (collectively, including the matters set forth below, the “Excluded Liabilities”), and, notwithstanding anything to the contrary herein, all of the following are Excluded Liabilities for purposes of this Agreement:
(i) all Liabilities under the Assigned Contracts to be paid, performed or otherwise discharged on or prior to the Closing Date or relating to a breach or default by Seller or his Affiliates on or prior to the Closing Date;
(ii) all Liabilities arising out of or relating to any Acquired Asset on or prior to the Closing Date or resulting from the ownership, operation or control of the Acquired Assets on or prior to the Closing Date, including all such Liabilities (i) arising out of or relating to the design, manufacture, testing, marketing, labeling, distribution, use or sale of any products, (ii) relating to a violation of Law or breach of Contract, or (iii) relating to any Proceeding, whether or not presently asserted;
(iii) all Liabilities related to the return of products sold on or prior to the Closing Date, recall of Products sold on or prior to the Closing Date, warranty claims, credits, rebates and refunds related to products sold on or prior to the Closing Date and product liability or similar claims for injury to person or property, regardless of when made or asserted, relating to products sold on or prior to the Closing Date;]
(iv) all Liabilities arising in connection with the Acquired Assets based on infringement, misappropriation or other violation of the Intellectual Property of any Person, or allegation thereof, in each case on or prior to the Closing Date;
(v) all Liabilities with respect to the Indebtedness of Seller or his Affiliates;
(vi) all Liabilities of Seller or any member of any consolidated, affiliated, combined or unitary group of which Seller is or has been a member for Taxes;
(vii) all Liabilities of Seller or any member of any consolidated, affiliated, combined or unitary group of which Seller is or has been a member for Taxes attributable to the Acquired Assets for any and all Tax periods ending on or prior to the Closing Date and the portion ending on the Closing Date of any Tax period that includes but does not end on the Closing Date (collectively, the “Pre-Closing Tax Period”), including any Taxes which are not due or assessed until after the Closing Date but which are attributable to such Pre-Closing Tax Period;
(viii) all Taxes that arise out of the consummation of the transactions contemplated hereby or other Taxes of Seller of any kind or description that become a liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or law,
(ix) all Taxes described in Section 4.4 that are the responsibility of Seller;
(x) all current liabilities related to the Acquired Assets as of Closing, including all outstanding accounts payable under the Assigned Contracts as of such time (whether or not invoiced prior to or after such time);
(xivxi) all Benefit Plans and all Liabilities arising out of the rights and powers of the Sellers under and with respect to such Benefit Plans, and any and each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 (the “Transferred Benefit Plans”); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall be transferred relating to the Buyers and will be assumed by businesses of Seller or his Affiliates other than (A) the BuyersAcquired Assets, or (B) the Excluded Assets;
(xvxii) all Permitsfees and expenses of counsel, including all Permits set forth accountants, consultants and advisors incurred by Seller or his Affiliates in Section 4.18 connection with the negotiation and preparation of this Agreement, the Disclosure Schedule (Ancillary Documents and the “Transferred Permits”);
(xvi) all goodwill of the Business as a going concern;
(xvii) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Transferred Intellectual Property (collectively, “Books and Records”)Transactions; and
(xviiixiii) all other propertiesLiabilities arising under any unclaimed property or escheat Laws to the extent related to facts or conditions existing on or prior to the Closing Date or resulting from the ownership, assets, rights and interests operation or control of any kind, whether tangible the Acquired Assets on or intangible, real or personal, of a type not described in prior to the foregoing clauses (i)-(xvii) that are owned by the Sellers or in which the Sellers have an interest and which are not Excluded AssetsClosing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Safe & Green Development Corp)
Sale and Purchase of Assets. Subject (a) On the Closing Date (as defined in Section 7.01), the Company shall execute and deliver to Holdings a Bxxx of Sale and Assumption substantially in the form of Exhibit A attached hereto and made part hereof (with such changes thereto as may be agreed upon by the Company and NHTC on or prior to the terms and conditions of this Agreement, at the ClosingClosing Date, the applicable Seller shall "Bxxx of Sale") and thereby (among other things) sell, assign, transfer, grant, convey, assign and set over to Holdings, and its successors and assigns forever, and Holdings shall execute and deliver and convey to the St. Maarten Buyer or Company the U.S. Buyer, as applicable, Bxxx of Sale and the St. Maarten Buyer or the U.S. Buyer, as applicable, will purchase, acquire thereby (among other things) purchase and accept receive from the applicable Seller all of the applicable Seller’s right, title and interest in the following assets (but excluding the Excluded Assets) (collectively, the “Seller Assets”)Company, free and clear of any and all Liens liens, security interests, mortgages, pledges, covenants, easements, encumbrances, defects in title, agreements and claims and rights of third parties ("Liens") (other than Permitted Liens (as hereinafter defined)), all of the rights, title and interest of the Company in, to and under the businesses, franchises, rights, claims, privileges, properties and assets owned, used or held for use by the Company, of every nature and description, tangible and intangible, wherever located and whether or not carried on the books or records of the Company, all as the same shall exist on the date hereof, but subject to such additions and dispositions as shall have occurred in the ordinary course of business after the date hereof or shall otherwise occur with the written consent of Holdings (the foregoing rights, title and interest being hereinafter sometimes collectively referred to as the "Subject Assets"). The Subject Assets are more particularly described in Section 1 of the Bxxx of Sale.
(b) For purposes of this Agreement, the term "Permitted Liens):
" means: (i) all Receivables held by the Sellers, including all Receivables reflected on the Closing Statement;
Liens for taxes not yet due and payable; (ii) all Transferred Intellectual Property, including all Transferred Intellectual Property set forth Liens imposed by Laws (as defined in Section 4.21(a) 2.07), such as banker's, warehousemen's, mechanic's and materialmen's liens, and other similar statutory or common law liens arising in the ordinary course of the Disclosure Schedule, along with all income, royalties, damages and payments due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world);
business; (iii) all rights Liens arising out of pledges, bonds or deposits under worker's compensation laws, unemployment insurance, old age pension or other social security or retirement benefits or similar legislation and deposits securing obligations for self-insurance arrangements in connection with any of the Contracts set forth on Schedule 1.1(a)(iii) attached hereto (the “Purchased Contracts”);
foregoing; (iv) easements, rights of way, building restrictions, minor defects or irregularities in title and such other encumbrances or charges against property (real, personal or mixed) as are of a nature that do not in a materially adverse way affect the Seller Transferred Owned Real Property;
marketability of the same or interfere with the use thereof in the ordinary course of business as presently conducted; (v) the Seller Transferred Leased Real Property Liens arising under Company Contracts (and the leases related theretoas defined in Section 2.08);
; (vi) all improvements Liens securing indebtedness (x) disclosed or reflected in the Company Financial Statements (as defined in Section 2.03), (y) owed to NHTC or any subsidiary thereof, (z) or otherwise Previously Disclosed (as defined in Article II); and all machinery, equipment, fixtures and trade fixtures;
(vii) all furniture, office supplies, production supplies Liens that will be released and any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property of any kind;
(viii) all prepayments, prepaid expenses and deposits (other than those related discharged in full on or prior to Excluded Assets or Retained Liabilities) and advances (including employee advances), including all prepayments, prepaid expenses and deposits and advances reflected on the Closing Statement;
(ix) all claims, refunds, credits, causes of action, rights of recovery and rights of set-off of any kind (other than those related to Excluded Assets or Retained Liabilities), whether arising by way of counterclaim or otherwise;
(x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Business;
(xi) all rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
(xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
(xiii) all insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities (including any such benefits arising from or related to the Insurance Policies);
(xiv) all Benefit Plans and all of the rights and powers of the Sellers under and with respect to such Benefit Plans, and any and each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 (the “Transferred Benefit Plans”); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall be transferred to the Buyers and will be assumed by the Buyers;
(xv) all Permits, including all Permits set forth in Section 4.18 of the Disclosure Schedule (the “Transferred Permits”);
(xvi) all goodwill of the Business as a going concern;
(xvii) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Transferred Intellectual Property (collectively, “Books and Records”); and
(xviii) all other properties, assets, rights and interests of any kind, whether tangible or intangible, real or personal, of a type not described in the foregoing clauses (i)-(xvii) that are owned by the Sellers or in which the Sellers have an interest and which are not Excluded Assets.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Natural Health Trends Corp)
Sale and Purchase of Assets. Subject to the terms and conditions of this Agreement, at the closing referred to in Section 2.02 (the "Closing"), the applicable Seller eCalton shall sell, assign, transfer, convey and deliver and convey to the St. Maarten Buyer or the U.S. Buyer, as applicable, and the St. Maarten Buyer or the U.S. Buyer, as applicable, will shall purchase, acquire and accept from the applicable Seller eCalton, all of the applicable Seller’s eCalton's right, title and interest in and to all of the following assets assets, properties and goodwill owned by eCalton constituting or used in the Business (but excluding those assets referred to in Section 1.02 and listed in Section 1.02 of the Excluded eCalton Disclosure Schedule annexed hereto as Exhibit 1.01 (the "eCalton Disclosure Schedule"), with such changes, deletions or additions thereto as may occur from the date hereof to the Closing in the ordinary course of business and consistent with the terms and conditions of this Agreement (the "Assets") (collectivelyincluding, without limitation, the “Seller Assets”), free and clear of all Liens (other than Permitted Liens):following:
(ia) all Receivables held by the Sellersfurnishings, including all Receivables reflected on the Closing Statement;
(ii) all Transferred Intellectual Property, including all Transferred Intellectual Property set forth in Section 4.21(a) of the Disclosure Schedule, along with all income, royalties, damages and payments due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world);
(iii) all rights under the Contracts set forth on Schedule 1.1(a)(iii) attached hereto (the “Purchased Contracts”);
(iv) the Seller Transferred Owned Real Property;
(v) the Seller Transferred Leased Real Property (and the leases related thereto);
(vi) all improvements and all machinery, equipment, fixtures and trade fixtures;
(vii) all furniture, office supplies, production supplies tools, machinery and equipment and other fixed assets owned by eCalton and used in the Business (the "Equipment");
(b) all quantities of inventory, including component parts and work in progress and any other supplieswarranty associated therewith (the "Inventory");
(c) all contracts, spare partsagreements, other miscellaneous supplies (including telephonesleases, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property arrangements and/or commitments of any kind;, whether oral or written, which relate to the Business or Assets, including without limitation those contracts listed in Section 1.01 (c) of the eCalton Disclosure Schedule (the "Contracts"); Buyer shall receive a credit against the Purchase price specified in Section 2.01 for the unearned portion of any prepaid customer deposits for work not yet completed on Contracts, including the unearned portion of deposits for web development projects and pre-paid web hosting fees calculated on a percentage of completion basis. Buyer shall also be entitled to collect the unearned portion of any accounts receivable associated with Contracts executed for which deposits have not been received by Seller calculated on a percentage of completion basis. If Buyer collects receivables earned by Seller prior to closing, Buyer agrees to remit Seller's portion to Seller upon receipt.
(viiid) all prepaymentscustomer lists, prepaid expenses files and deposits (other than those related to Excluded Assets or Retained Liabilities) and advances documents (including employee advances)credit information) relating to customers and vendors of the Business, including all prepayments, prepaid expenses and deposits and advances reflected on the Closing Statement;
(ix) all claims, refunds, credits, causes of action, rights of recovery and rights of set-off of any kind (other than those related to Excluded Assets or Retained Liabilities), whether arising by way of counterclaim or otherwise;
(x) the right to receive and retain mail, payments of receivables and other communications (other than those related business and financial records, files, books and documents relating to Excluded the Assets or Retained Liabilities) and all telephone numbers used by and/or the Business;
(xie) all rights under warrantiescompany Web sites and domain names, indemnities including without limitation ecalton.com, backoffice.ecalton.com, metatiki.com, privategates.com xxx xxxxxxxanxx.xxx.
(x) xxx xxxxxxx, xxxxxxxxxx xxx xrade xxxxx xxx xxxxxcations therefore which are owned by eCalton and all similar rights against third parties to used in the extent related to any Purchased AssetsBusiness;
(xiig) all advertisingmunicipal, marketing state and promotional materialsfederal franchises, all archival materials licenses, authorizations and all other printed or written materials;
permits of the Business (xiii) all insurance benefits, including rights and proceeds, arising from or relating to the Businesscollectively, the Purchased Assets or the Assumed Liabilities (including any such benefits arising from or related to the Insurance Policies"Permits");
(xivh) all Benefit Plans computers, computer programs, computer databases, hardware and all of the rights software owned or licensed by eCalton and powers of the Sellers under and with respect to such Benefit Plans, and any and each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 (the “Transferred Benefit Plans”); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall be transferred to the Buyers and will be assumed by the Buyers;
(xv) all Permits, including all Permits set forth in Section 4.18 of the Disclosure Schedule (the “Transferred Permits”);
(xvi) all goodwill of the Business as a going concern;
(xvii) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Transferred Intellectual Property (collectively, “Books and Records”); and
(xviii) all other properties, assets, rights and interests of any kind, whether tangible or intangible, real or personal, of a type not described used in the foregoing clauses (i)-(xvii) that are owned by the Sellers or in which the Sellers have an interest and which are not Excluded Assets.Business;
Appears in 1 contract
Sale and Purchase of Assets. (a) Subject to the terms and conditions of this Agreement, including Section 3.10(a) hereof, at the Closing, the applicable Closing Seller shall sell, assign, transfer, convey, assign and deliver to Buyer and convey to the St. Maarten Buyer or the U.S. Buyer, as applicable, and the St. Maarten Buyer or the U.S. Buyer, as applicable, will shall purchase, acquire and accept from Seller, all the applicable Seller all of the applicable Seller’s right, title and interest of Seller in and to all property and assets owned by Seller and used in the Business, of every nature, kind and description, wherever located, including, without limitation the following assets (but excluding the Excluded Assets) (collectively, the “Seller Assets”), free and clear of all Liens (other than Permitted Liens):
(i) all Receivables held by the Sellers, including all Receivables reflected on the Closing StatementAll Tangible Assets;
(ii) all Transferred Intellectual Property, including all Transferred Intellectual Property set forth in Section 4.21(a) of the Disclosure Schedule, along with all income, royalties, damages and payments due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world)Accounts Receivable;
(iii) all rights under the Contracts set forth on Schedule 1.1(a)(iii) attached hereto (the “Purchased Contracts”)Inventory and Rental Assets;
(iv) the all Contracts of Seller Transferred Owned Real Propertyand all Bids of Seller;
(v) the Seller Transferred Leased Real Property (all Governmental Authorizations and the leases related thereto)all pending applications therefor and renewals thereof;
(vi) all improvements and all machineryrent/security deposits, equipmentcredits, fixtures and trade fixtures;
(vii) all furniture, office supplies, production supplies and any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property of any kind;
(viii) all prepayments, prepaid expenses (as scheduled), and deposits deferred items (other than those related to Excluded Assets or Retained Liabilities) and advances (including employee advancesdeferred income Taxes), including all prepaymentsclaims, prepaid expenses and deposits and advances reflected on the Closing Statement;
(ix) all claimsdeposits, refunds, creditsclaims for refunds and rights to offset in respect thereof, rights against third parties, causes of action, chooses in action, rights of recovery recovery, rights of set off, and rights of set-off recoupment (including any such item relating to the payment of any kind (Taxes other than those related income Taxes), other prepaid items and all other intangible rights relating to Excluded the Assets or Retained Liabilitiesthe Facilities, including, without limitation, those items as of September 30, 2006 listed on Schedule 2.1(a)(vi) (to the extent not reduced in the Ordinary Course of Business since such date), whether arising by way of counterclaim or otherwise;
(x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Business;
(xi) all rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
(xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
(xiiivii) all insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities (including any such benefits arising from or related prior to the Insurance Policies)Closing, unless expended in accordance with this Agreement;
(xivviii) all Benefit Plans Seller Intellectual Property, including all going concern value, telephone, telecopy, website domains and all of the rights e-mail addresses and powers of the Sellers under listings and with respect to such Benefit Plansthose items listed on Schedule 3.14(a), and any and each trustall associated goodwill, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to be transferred to, including the name “Signature Special Event Services;”
(ix) all data and assumed by the Buyers, in accordance with Section 5.12 (the “Transferred Benefit Plans”); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall be transferred Records related to the Buyers and will be assumed by the Buyers;
(xv) all Permitsoperations of Seller, including all Permits set forth in Section 4.18 of the Disclosure Schedule (the “Transferred Permits”);
(xvi) all goodwill of the Business as a going concern;
(xvii) all originalsclient and customer lists and Records, or where not availablereferral sources, copiesresearch and development reports and Records, of all books production reports and recordsRecords, including books of accountservice and warranty Records, ledgers equipment logs, operating guides and generalmanuals, financial and accounting recordsRecords, machinery creative materials, advertising materials, promotional materials, studies, reports, correspondence and equipment maintenance filesother similar documents and Records and, customer listssubject to Legal Requirements, customer purchasing historiescopies of all personnel Records, price listsand all other printed, distribution listswritten or machine-readable materials in whatever form, supplier listsincluding without limitation electronic databases, production dataand whether held by Seller or stored on behalf of Seller by third parties, quality control records directly and proceduresexclusively related to any of the foregoing.
(b) Notwithstanding the foregoing, customer complaints and inquiry files, research and development files, records and data (including all correspondence with the transfer of the Assets pursuant to this Agreement shall not include the assumption of any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating Liability related to the Transferred Intellectual Property (collectively, “Books and Records”); and
(xviii) all other properties, assets, rights and interests of any kind, whether tangible or intangible, real or personal, of a type not described in the foregoing clauses (i)-(xvii) that are owned by the Sellers or in which the Sellers have an interest and which are not Excluded AssetsAssets unless Buyer expressly assumes such Liability pursuant to Section 2.3.
Appears in 1 contract
Samples: Asset Purchase Agreement (Tvi Corp)
Sale and Purchase of Assets. Prior to the Closing, Purchaser shall establish or cause its Affiliates to establish a 100% owned subsidiary ("Newco") in the Republic of Korea, and shall assign all of its rights and obligations under this Agreement to Newco without further consent of Seller. Following such assignment, all references to the Purchaser in this Agreement shall be considered references to Newco as if Newco had originally executed this Agreement and Purchaser shall be relieved of any and all liability under this Agreement except that Amkor's obligation to pay the Purchase Price and to assume the Assumed Liabilities shall be discharged when Newco pays the Purchase Price and assumes the Assumed Liabilities. The Parties also understand that certain covenants of Seller shall extend to the original Purchaser under this Agreement (i.e., Amkor Technology, Inc., "Amkor"). In such case, Newco and Amkor are collectively referred to as "Purchasing Parties". Subject to the terms and conditions of this Agreementhereof, at the ClosingClosing referred to in Section 1.8 below, the applicable Seller shall will sell, assign, transfer, deliver convey and convey assign to the St. Maarten Buyer or the U.S. Buyer, as applicable, and the St. Maarten Buyer or the U.S. Buyer, as applicable, will purchase, acquire and accept from the applicable Seller all of the applicable Seller’s right, title and interest in the following assets (but excluding the Excluded Assets) (collectively, the “Seller Assets”)Purchaser, free and clear of all Liens of every kind, nature and description, except for the Excluded Assets (as defined in Section 1.2) or as otherwise disclosed and agreed in this Agreement, and Purchaser will purchase from Seller, all of the assets as shall be listed on Schedule 1.1 (the "Asset List") and any other than Permitted Liens):
assets that are being used for or are substantially related to the Business including, without limitation, Seller's properties and business as a going concern and good will and assets existing on the date of Closing, wherever such assets are located and whether real, personal or mixed, tangible or intangible, and whether or not any of such assets have any value for accounting purposes or are carried or reflected on or specifically referred to in its books or Financial Statement (i) collectively, the "Purchased Assets"). The Purchased Assets shall include, without limitation, all Receivables held by of Seller's right, title and interest in and to the Sellersfollowing, including all Receivables reflected as the same may exist on the Closing StatementDate:
(a) the Owned Real Properties together with the buildings, fixtures, structures and other improvements erected thereon, and together with all easements, rights and privileges appurtenant thereto, as more particularly described on the Asset List;
(iib) all Transferred Intellectual Property, including all Transferred Intellectual Property set forth in Section 4.21(a) of the Disclosure Schedule, along with all income, royalties, damages and payments due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world);
(iii) all rights under the Contracts set forth on Schedule 1.1(a)(iii) attached hereto (the “Purchased Contracts”);
(iv) the Seller Transferred Owned Real Property;
(v) the Seller Transferred Leased Real Property (and the leases related thereto);
(vi) all improvements and all Seller's machinery, equipment, fixtures tooling, dies, jigs, vehicles, spare parts and trade fixturessupplies being used for or substantially related to the Business, including without limitation, the items listed on the Asset List;
(viic) all of Seller's raw materials, work in process, parts, subassemblies, finished goods and other inventories being used for or substantially related to the Business, wherever located and whether carried on Seller's books of account;
(d) all of Seller's other tangible assets being used for or substantially related to the Business, including office furniture, office equipment and supplies, production supplies computer hardware and any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers software and computers and related software), tooling, molds, dies, vehicles and other tangible property of any kindvehicles;
(viiie) all prepaymentsof Seller's books, prepaid expenses records, manuals, documents, books of account, correspondence, sales and deposits (other than those credit reports, customer lists, literature, brochures, advertising material and the likes that are used for or are substantially related to Excluded Assets or Retained Liabilities) and advances (including employee advances), including all prepayments, prepaid expenses and deposits and advances reflected on the Closing Statement;
(ix) all claims, refunds, credits, causes of action, rights of recovery and rights of set-off of any kind (other than those related to Excluded Assets or Retained Liabilities), whether arising by way of counterclaim or otherwise;
(x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Business;
(xif) all of Seller's rights under warrantiesleases for property, indemnities and all similar rights against third parties to the extent whether real or personal, used for or substantially related to any Purchased Assets;
(xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
(xiii) all insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities (including any such benefits arising from or related to the Insurance Policies);
(xiv) all Benefit Plans and all of the Seller's rights under all other contracts, agreements and powers of purchase and sale orders related to the Sellers under and with respect to such Benefit Plans, and any and each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 Business (the “Transferred Benefit Plans”"Assigned Contracts"); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and which Assigned Contracts will be the responsibility of, the Sellers from and after assigned to Purchaser at or prior to the Closing until the Transfer Date, at and which time the Transferred Benefit Plans shall be transferred to the Buyers and will be assumed by the Buyerslisted on Schedule 1.10;
(xvg) all PermitsAll of Seller's interest in governmental permits, including all Permits set forth in Section 4.18 of the Disclosure Schedule (the “Transferred Permits”);
(xvi) all goodwill of the Business as a going concern;
(xvii) all originalslicenses, or where not availableregistrations, copies, of all books orders and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files approval substantially relating to the Transferred Intellectual Property (collectivelyBusiness to the extent such permits, “Books licenses, registrations, orders and Records”)approvals are separately transferable to Purchaser; and
(xviiih) all All right, title and interest of Seller in and to the goodwill incident to the Business other properties, assets, rights and interests than those exclusively related to the businesses of any kind, whether tangible or intangible, real or personal, of a type not described in the foregoing clauses (i)-(xvii) that are owned by the Sellers or in which the Sellers have an interest and Seller which are not to be transferred hereunder. The Parties understand that, while certain Intellectual Properties (including Licensed Intellectual Property) may be assigned to Purchaser, most of the Intellectual Properties may not be assigned to Purchaser, since they are also related to the other business of Seller which are not transferred to Purchaser hereunder. With respect to such Intellectual Properties which may be assigned to Purchaser, Seller shall sell, transfer, convey and assign to Purchaser, free and clear of all Liens of every kind, nature and description, all right, title and interest of Seller in and to such Intellectual Properties. With respect to the Intellectual Properties which may not be assigned to Purchaser, to the extent legally and/or contractually permissible, Seller hereby shall grant to Purchaser and its Affiliates, effective at the Closing Date, an irrevocable, worldwide, non-exclusive, perpetual, paid-up, royalty-free and transferable (and sub-licensable) license (or sub-license) to utilize such Intellectual Properties (including the Licensed Intellectual Property) which Seller has rights to use as of the Closing Date, after obtaining any and all consents necessary therefor for Purchaser to be able to operate the Business substantially in the manner as such Business was operated by Seller. For this purpose, Purchaser shall enter into one or more licensing agreements (the "IP Licensing Agreements") with the holders of relevant Intellectual Properties, including Seller itself, prior to the Closing. All costs, if any, shall be payable by Seller to any third parties in connection with the transfer, licenses or sub-licenses for the benefit of Purchaser pursuant to this Agreement. In addition, the Parties agree that such IP Licensing Agreements will contain rights of Purchaser or Amkor to acquire the Intellectual Properties developed by Seller after the Closing Date on mutually agreed and commercially reasonable terms. To the extent that there are any tangible or intangible assets used by Seller in connection with or otherwise necessary to the operation of the Business that are not included in this Section 1.1 and are not specifically designated as Excluded AssetsAssets by Section 1.2, the Purchased Assets shall include an irrevocable, nonexclusive, perpetual, paid-up, royalty-free, transferable license, contract or lease to utilize such assets in connection with the operation of the Business after the Closing Date. To the extent that any such assets may not be licensed, contracted or leased, Seller shall take all steps required to assure that Purchaser obtains the benefit of such assets.
Appears in 1 contract
Sale and Purchase of Assets. Subject to the terms and conditions of this Agreement, at on the ClosingClosing Date (defined below), the applicable Seller shall will sell, assign, transfer, deliver transfer and convey to the St. Maarten Buyer or the U.S. Buyer, as applicableits designees, and the St. Maarten Buyer or the U.S. Buyer, as applicable, its designees will purchase, acquire and accept from the applicable Seller Seller, free and clear of Encumbrances, all of the applicable Seller’s rightrights, title and interest in and to the following assets of Seller (but excluding the Excluded “Purchased Assets”):
(a) all of Seller’s worldwide rights, title, and interests in and to the trademarks, service marks, trade names, logos and corporate names set forth on Schedule 2.1(a) hereto (whether registered or not), together with translations, adaptations, derivations and combinations thereof and including the goodwill of the business associated therewith, and all applications, registrations, renewals in connection therewith (collectively, the “Marks”) as well as all rights to sxx, recover and retain damages for any past, current or future infringement of the Marks.
(b) all of Seller’s worldwide rights, title and interests in and to all of Seller’s registered and unregistered copyrights and copyright registrations and applications related to the Marks including without limitation the copyright registrations set forth on Schedule 2.1(b) (collectively, the “Seller Assets”), free and clear of all Liens (other than Permitted Liens):
(i) all Receivables held by the Sellers, including all Receivables reflected on the Closing Statement;
(ii) all Transferred Intellectual Property, including all Transferred Intellectual Property set forth in Section 4.21(a) of the Disclosure Schedule, along with all income, royalties, damages and payments due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world);
(iii) all rights under the Contracts set forth on Schedule 1.1(a)(iii) attached hereto (the “Purchased ContractsCopyrights”);
(ivc) all of Seller’s domain names and all domain names registered on Seller’s behalf for use in Seller’s business and corresponding registrations including without limitation the Seller Transferred Owned Real Property;
domain names set forth on Schedule 2.1(c) (v) collectively, the Seller Transferred Leased Real Property (and the leases related thereto“Domain Names”);
(vid) all improvements and all machinery, equipment, fixtures and trade fixtures;
(vii) all furniture, office supplies, production supplies and any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property of any kind;
(viii) all prepayments, prepaid expenses and deposits (other than those related accounts receivable owing to Excluded Assets or Retained Liabilities) and advances (including employee advances), including all prepayments, prepaid expenses and deposits and advances reflected Seller on the Closing Statement;
(ixDate which shall be set forth on Schedule 2.1(d) all claims, refunds, credits, causes of action, rights of recovery and rights of set-off of any kind (other than those related to Excluded Assets or Retained Liabilities), whether arising by way of counterclaim or otherwise;
(x) be attached hereto on the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Business;
(xi) all rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
(xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
(xiii) all insurance benefitsClosing Date, including rights the benefit of all collateral, security, guaranties, and proceedssimilar undertakings received or held in connection therewith and any claim, arising from remedy or relating to the Business, the Purchased Assets or the Assumed Liabilities (including any such benefits arising from or other right related to the Insurance Policies);
(xiv) all Benefit Plans and all of the rights and powers of the Sellers under and with respect to such Benefit Plans, and any and each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 foregoing (the “Transferred Benefit PlansAcquired Accounts Receivable”); provided, howeverhowever that Acquired Accounts Receivable shall consist solely of the following: (i) accounts receivable listed on Schedule 3.5 less any accounts receivable collected in accordance with Section 5.4 and less any accounts receivable on which goods have been returned, plus (ii) accounts receivable generated by Seller after April 4, 2005 (x) in connection with goods sold to account debtors either listed on Schedule 3.5 or approved in advance by Buyer or (y) that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall be transferred Buyer agrees in its sole discretion to the Buyers and will be assumed by the Buyerspurchase;
(xve) all Permits, including all Permits the pairs of boots in the style numbers and quantity as set forth in Section 4.18 of the Disclosure on Schedule 2.1(e) (the “Transferred Permits”);
(xvi) all goodwill of the Business as a going concern;
(xvii) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Transferred Intellectual Property (collectively, “Books and RecordsInventory”); and
(xviiif) all other properties, assets, rights and interests any inventory returned by a customer that is the subject of any kind, whether tangible or intangible, real or personal, of a type not described in the foregoing clauses (i)-(xvii) that are owned by the Sellers or in which the Sellers have an interest and which are not Excluded AssetsAcquired Accounts Receivable.
Appears in 1 contract
Sale and Purchase of Assets. Subject to the terms, conditions and exclusions set forth in this Agreement, Seller hereby sells, transfers and assigns to Purchaser, and Purchaser hereby purchases and acquires from Seller, the Business as a going concern, including all of the assets, properties, good will, rights and business of the Business owned by Seller of every type and description, including real, personal, tangible and intangible, wherever located and whether or not reflected on the books and records of Seller (collectively, the “Purchased Assets”), as the same shall exist on the Effective Date, including, without limitation, the following:
(a) all leases or rental agreements, including but not limited to inactive or charged off Hire Agreements, all of the contracts, agreements, orders, engagements and arrangements (whether written or oral) between Seller and customers of the Business for the supply of goods or services by Seller in the ordinary course of trading in relation to the Business which exist as of the Effective Date, including the benefit thereof, instruments or arrangements relating to the Business, including, but not limited to, all of Seller’s accounts and rights to receive payments and other forms of receivables, whether by installments, deferred payments, rental payments or otherwise, including but not limited to those listed or described in Schedule 1.1(a) which shall be delivered to Purchaser currently with the execution of this Agreement (the “Hire Agreements”), other than those Hire Agreements (and the equipment leased pursuant to such Hire Agreement) that are currently classified by Seller as “inactive” and that were originated during the Lapse Period or the Non-conforming Period (as defined in Section 6.21) (the “Excluded Inactive Hire Agreements”). For the purposes of the remainder of this Agreement, the terms “Hire Agreements” and “Purchased Assets” shall not include the Excluded Inactive Hire Agreements. For the avoidance of doubt, this Agreement this Agreement shall constitute an absolute assignment to the Purchaser of the Hire Agreements;
(b) with respect to any Hire Agreements, all documents, contracts and agreements, notes chattel paper, other evidences of indebtedness, security agreements, conditional sale contracts, financing leases, deeds of trust, certificates of title, and any other evidences or documents of ownership, guarantees, recourse agreements and all other security and other instruments or documents of every kind related to the Hire Agreements and/or the Collateral executed or delivered in connection with such Hire Agreements (collectively, the “Hire Agreement Documents”), including but not limited to those documents and agreements specified on Schedule 1.1(b);
(c) the right, title and ownership of the Goods (as the term is defined or described in each Hire Agreement and referred to herein as the “Goods”) described in each Hire Agreement or which otherwise secures the payment or performance pursuant to each Hire Agreement, including all proceeds thereof (the “Collateral”);
(d) except as set forth on Schedule 1.1(d), (i) all rentals, installments and other payments due or to become due under the Hire Agreements and the Hire Agreement Documents, including, without limitation, all amounts payable by the person obligated to make payment under a Hire Agreement (the “Account Debtor”) upon any extension of the term of the Hire Agreement or upon the exercise of any renewal or purchase option and all rights to the proceeds of insurance, if any exists, covering the Collateral, (ii) all of the rights and remedies of Seller under the Hire Agreements and the Hire Agreement Documents, including the right to take in Seller’s name any and all proceedings, legal, equitable or otherwise that Seller could otherwise take save for those rights and remedies under this Agreement, and (iii) all proceeds (other than the amounts payable by Purchaser to Seller pursuant and subject to the terms and conditions of this Agreement) of the sale or other disposition of the Hire Agreements, at Hire Agreement Documents and/or the Closing, the applicable Seller shall sell, assign, transfer, deliver and convey Collateral;
(e) to the St. Maarten Buyer extent transfer is permitted by applicable law, all franchises, approvals, permits, licenses, orders, registrations, certificates, variances, qualifications and other similar rights or governmental authorization and approvals relating to the U.S. BuyerHire Agreements, Hire Agreement Documents and for the Collateral, as applicablesuch items are specified in Schedule 4.1.6(a), and the St. Maarten Buyer or the U.S. Buyer, as applicable, will purchase, acquire and accept from the applicable Seller all of the applicable Seller’s right, title and interest in the following assets (but excluding the Excluded Assets) (collectively, the “Seller Assets”), free Licenses and clear of all Liens (other than Permitted Liens):
(i) all Receivables held by the Sellers, including all Receivables reflected on the Closing Statement;
(ii) all Transferred Intellectual Property, including all Transferred Intellectual Property set forth in Section 4.21(a) of the Disclosure Schedule, along with all income, royalties, damages and payments due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world);
(iii) all rights under the Contracts set forth on Schedule 1.1(a)(iii) attached hereto (the “Purchased Contracts”);
(iv) the Seller Transferred Owned Real Property;
(v) the Seller Transferred Leased Real Property (and the leases related thereto);
(vi) all improvements and all machinery, equipment, fixtures and trade fixtures;
(vii) all furniture, office supplies, production supplies and any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property of any kind;
(viii) all prepayments, prepaid expenses and deposits (other than those related to Excluded Assets or Retained Liabilities) and advances (including employee advances), including all prepayments, prepaid expenses and deposits and advances reflected on the Closing Statement;
(ix) all claims, refunds, credits, causes of action, rights of recovery and rights of set-off of any kind (other than those related to Excluded Assets or Retained Liabilities), whether arising by way of counterclaim or otherwise;
(x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Business;
(xi) all rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
(xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
(xiii) all insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities (including any such benefits arising from or related to the Insurance Policies);
(xiv) all Benefit Plans and all of the rights and powers of the Sellers under and with respect to such Benefit Plans, and any and each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 (the “Transferred Benefit Plans”); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall be transferred to the Buyers and will be assumed by the Buyers;
(xv) all Permits, including all Permits set forth in Section 4.18 of the Disclosure Schedule (the “Transferred Permits”);
(xvif) all goodwill of client, customer and other lists, if any exist, related to the Business as a going concernHire Agreements, Hire Agreement Documents and/or the Collateral and all registered or unregistered intellectual property rights (including without limitation, all copyright and database rights) contained in such lists;
(xviig) all originalsdatabase or computer files related to the Hire Agreements, Hire Agreement Documents or where not availablethe Collateral (“Customer Database”), copiesa copy of which Seller may keep for purposes set forth in Section 4.1.26(g), of and all books and recordsregistered or un-registered intellectual property rights (including without limitation, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records all copyright and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to base rights) contained in the Transferred Intellectual Property (collectively, “Books and Records”)Customer Database; and
(xviiih) all other properties, assets, rights and interests of any kind, whether tangible or intangible, real or personal, of a type not described in the foregoing clauses (i)-(xvii) that are owned payments paid by the Sellers Accounts Debtors or in which owed by them as of the Sellers have an interest and which are not Excluded AssetsEffective Date.
Appears in 1 contract
Sale and Purchase of Assets. Subject to the terms and conditions of this Agreement, at At the Closing, the applicable each Asset Seller shall sell, assign, transfer, transfer and deliver and convey to the St. Maarten Buyer or the U.S. Buyer, as applicablePurchaser, and the St. Maarten Buyer or the U.S. Buyer, as applicable, will purchase, acquire and accept Purchaser shall purchase from the applicable Seller all of the applicable such Asset Seller’s right, title and interest in the following assets (but excluding the Excluded Assets) (collectively, the “Seller Assets”), free and clear of all Liens (other than Permitted Liens):
(i) all Receivables held by the Sellers), including all Receivables reflected on the Closing Statement;
(ii) all Transferred Intellectual Property, including all Transferred Intellectual Property terms and subject to the conditions and Table of Contents exclusions set forth in this Agreement, all (a) Internet domain names of such Asset Seller primarily used or held for use in the Business, (b) the Franchise Agreements, but only to which such Asset Seller is a party and listed on Section 4.21(a2.14(a) of the Company Disclosure Schedule, along with all income, royalties, damages and payments due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to sxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world);
(iii) all rights under the Contracts set forth on Schedule 1.1(a)(iii) attached hereto (the “Purchased Contracts”);
(ivc) the accounts receivable of such Asset Seller Transferred Owned Real Property;
arising from such Asset Seller’s Franchise Agreements, (v) the Seller Transferred Leased Real Property (and the leases related thereto);
(vi) all improvements and all machinery, equipment, fixtures and trade fixtures;
(vii) all furniture, office supplies, production supplies and any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property of any kind;
(viii) all prepayments, prepaid expenses and deposits (other than those related to Excluded Assets or Retained Liabilities) and advances (including employee advances), including all prepayments, prepaid expenses and deposits and advances reflected on the Closing Statement;
(ixd) all claims, refunds, credits, causes of action, rights of recovery and recovery, rights of set-off off, and warranties of such Asset Seller (at any kind time or in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or otherwise) to the extent relating to the Business or any Purchased Assets, and all defenses and rights of offset or counterclaim to the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and (e) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectively, the “Purchased Assets”), including those items set forth on Section 1.2 of the Company Disclosure Schedule. Purchaser shall not purchase, and the Purchased Assets shall not include, any assets, rights or properties of the Asset Sellers other than those related to Excluded Assets or Retained Liabilities), whether arising by way of counterclaim or otherwise;
(x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Business;
(xi) all rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
(xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
(xiii) all insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities (including any such benefits arising from or related to the Insurance Policies);
(xiv) all Benefit Plans and all of the rights and powers of the Sellers under and with respect to such Benefit Plans, and any and each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 (the “Transferred Benefit Plans”); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall be transferred to the Buyers and will be assumed by the Buyers;
(xv) all Permits, including all Permits set forth in Section 4.18 of the Disclosure Schedule subsections (the “Transferred Permits”);
a) – (xvie) above (all goodwill of the Business as a going concern;
(xvii) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Transferred Intellectual Property (collectively, “Books and Records”); and
(xviii) all other properties, such assets, rights and interests of any kindproperties not being purchased, whether tangible or intangible, real or personal, of a type not described in the foregoing clauses (i)-(xvii) that are owned by the Sellers or in which the Sellers have an interest and which are not “Excluded Assets”).
Appears in 1 contract
Sale and Purchase of Assets. Subject to the terms and conditions of this Agreement, at the Closing, the applicable Seller shall sell, assign, transfer, transfer and deliver and convey to the St. Maarten Buyer or the U.S. Buyer, as and Buyer shall purchase from Seller the following assets of Seller (the “Purchased Assets”):
(a) all Inventory;
(b) all of Seller’s equipment used in connection with the Business (in each case where applicable, together with only such fittings or wiring beyond the switch gears as agreed to by Buyer and the St. Maarten Buyer or the U.S. BuyerSeller in writing), computer equipment and motor vehicles, as applicable, will purchase, acquire and accept from well as all manufacturers’ warranties associated with such items;
(c) the applicable Seller Proprietary Rights set forth on Schedule 4.6; and
(d) all of the applicable Seller’s rightrights, title and interest in in, to or under the following assets (but excluding the Excluded Assetscontracts described on Schedule 2.1(d) (collectively, the “Seller AssetsAssigned Agreements”). Notwithstanding anything in this Agreement to the contrary, free and clear no contract, agreement, or license, of all Liens (other than Permitted Liens):
(i) all Receivables held by the Sellers, including all Receivables reflected on the Closing Statement;
(ii) all Transferred Intellectual Property, including all Transferred Intellectual Property set forth in Section 4.21(a) Seller that is part of the Disclosure SchedulePurchased Assets and that is not capable of being delegated, along with all incomeassigned or transferred to Buyer without the consent or waiver of another party, royaltiesor under which any delegation, damages assignment transfer or purported delegation, assignment or delegation to Buyer would constitute a violation, breach or default, shall be delegated, assigned or transferred to Buyer without having first obtained such required consent or waiver and, to the extent such consents and payments due or payable approvals are not obtained and in full force and effect as of the Closing Date or thereafter (including damages and payments for pastBuyer nevertheless proceeds to close the Transactions, present or future infringements or misappropriations thereof, the right Seller shall use commercially reasonable efforts to sxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world);
(iii) all rights under the Contracts set forth on Schedule 1.1(a)(iii) attached hereto (the “Purchased Contracts”);
(iv) the Seller Transferred Owned Real Property;
(v) the Seller Transferred Leased Real Property (and the leases related thereto);
(vi) all improvements and all machinery, equipment, fixtures and trade fixtures;
(vii) all furniture, office supplies, production supplies and any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property of any kind;
(viii) all prepayments, prepaid expenses and deposits (other than those related to Excluded Assets or Retained Liabilities) and advances (including employee advances), including all prepayments, prepaid expenses and deposits and advances reflected on the Closing Statement;
(ix) all claims, refunds, credits, causes of action, rights of recovery and rights of set-off of any kind (other than those related to Excluded Assets or Retained Liabilities), whether arising by way of counterclaim or otherwise;
(x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Business;
(xi) all rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
(xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
(xiii) all insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities (including any such benefits arising from or related to the Insurance Policies);
(xiv) all Benefit Plans and all of the rights and powers of the Sellers under and cooperate with respect to such Benefit Plans, and any and each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 (the “Transferred Benefit Plans”); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and Buyer after the Closing until the Transfer Date, at (i) to establish lawful arrangements which time the Transferred Benefit Plans shall be transferred to the Buyers and will be assumed by the Buyers;
(xv) all Permits, including all Permits set forth in Section 4.18 of the Disclosure Schedule (the “Transferred Permits”);
(xvi) all goodwill of the Business as a going concern;
(xvii) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Transferred Intellectual Property (collectively, “Books and Records”); and
(xviii) all other properties, assets, rights and interests of any kind, whether tangible or intangible, real or personal, of a type not described result in the foregoing clauses benefits and obligations under such contracts, agreements, and licenses being apportioned in a manner that is consistent with the purpose and intention of this Agreement and (i)-(xviiii) that are owned if so requested by Buyer and at Buyer’s expense, to obtain any such consents and waivers, and enforce Seller’s rights under such contracts, agreements, and licenses on behalf and for the Sellers or in which the Sellers have an interest benefit of, and which are not Excluded Assetsas directed by, Buyer.
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