Subject Assets. Subject to the terms and conditions set forth in this Agreement, Seller will Sell to Buyer, and Buyer will Purchase from Seller at the Closing, free and clear of all Encumbrances other than Permitted Encumbrances, the Subject Assets, defined as all of the right, title and interest in and to all of Seller's properties, assets and rights of any kind, whether tangible or intangible, real or personal, and owned by Seller or in which Seller has any interest, including, without limitation, all of Seller's and Parent's (to the extent applicable, if any) right, title and interest, subject to Section 10.2, in the following: (a) All tangible assets (other than Inventory set forth on SCHEDULE 2.1(b) attached hereto), including, without limitation, tooling, fixtures and equipment used in the manufacture of European Formwork Products (as defined in the Exclusive Manufacturing and Distribution Agreement), set forth on SCHEDULE 2.1(a) attached hereto; (b) All Inventory, including, without limitation, rental equipment, set forth on SCHEDULE 2.1(b) attached hereto; (c) All supplies, marketing and sales literature, advertising materials, catalogues, consumable materials and other items of similar character used in the operation of the Subject Business; (d) All customer and supplier lists of the Subject Business; (e) All books, records, manuals, lists, files, ledgers, plans, drawings, reports and other materials of the Subject Business or pertaining to the Subject Assets, including, without limitation, all sales, marketing, manufacturing and customer files, records and other information (including without limitation, billing and shipping information), vendor information, operating records of every kind, environmental records, maintenance records, accounting records, purchase, sale and distributor records, price lists, correspondence and quality control records, item masters, information on rental equipment and other products, PIK lists, accounting codes, system codes and other data and information primarily related to and/or material to the conduct of the Subject Business or the other Subject Assets, in whatever form and wherever located ("Records"); (f) All Contracts and associated Contract Rights set forth on SCHEDULE 2.1(f) attached hereto; (g) All Leases set forth on SCHEDULE 2.1(g) attached hereto; (h) All Leasehold Estates, with respect to the Leases set forth on SCHEDULE 2.1(g) attached hereto; (i) All Leasehold Improvements set forth on SCHEDULE 2.1(i) attached hereto; (j) All Fixtures and Equipment set forth on SCHEDULE 2.1(j) attached hereto; (k) All Intellectual Property set forth on SCHEDULE 2.1(k) attached hereto; (l) All Permits set forth on SCHEDULE 2.1(l) attached hereto; (m) All computers and, to the extent transferable, related software set forth on SCHEDULE 2.1(m) attached hereto; (n) All insurance proceeds with respect to the Subject Assets; (o) All available art work, display units and telephone and fax numbers exclusively related to the Subject Business; (p) All rights under or pursuant to all warranties, representations and guarantees made by suppliers in connection with the Subject Assets or services furnished to Seller pertaining to the Subject Business or affecting the Subject Assets; (q) All revenue and other amounts or rights to such revenue or other amounts arising or resulting from, or relating or incident to, any transaction, work, service or other action related to or arising out of the Subject Assets or the Subject Business on or after the Closing Date and all refunds, deposits and prepaid expenses of Seller arising or resulting from, or relating or incident to, any transaction, work, service or other action related to or arising out of the Subject Assets or the Subject Business on or after the Closing Date; (r) All claims, causes of action, choses in action, rights of recovery and rights of set-off of any kind, against any Person or entity, including, without limitation, any liens, security interests, pledges or other rights to payment or to enforce payment arising out of or relating to the Subject Assets, except to the extent, and only to such extent, arising out of or relating to the Excluded Liabilities or the Excluded Assets; and (s) The goodwill of the Subject Business. All of the foregoing are hereinafter referred to collectively as the "Subject Assets"; provided, however that the Subject Assets shall not include the Excluded Assets pursuant to Section 2.2. Buyer will have a purchase option (the "Purchase Option"), as set forth in the Transition Agreement, exercisable in accordance with the terms of the Transition Agreement to Purchase additional assets (the "Purchase Option Assets") as set forth on SCHEDULE 2.1(x) attached hereto, and such assets shall be deemed Excluded Assets unless and until they are Purchased by Buyer. Any Purchase Option Assets actually Purchased by Buyer or Dayton shall be deemed Subject Assets for purposes hereunder as of the Second Closing Effective Time.
Appears in 1 contract
Subject Assets. Subject to the terms and conditions set forth in -------------- this Agreement, Seller will Sell agrees to Buyersell to Purchaser, and Buyer will Purchase Purchaser agrees to purchase from Seller Seller, at the ClosingClosing (as defined in Section 3.1), free and clear of all Encumbrances other than Permitted Encumbrances, the Subject Assets, defined as all of the right, title and interest in and to all assets of Seller's properties, assets and rights of any kind, whether tangible Seller owned or intangible, real or personal, and owned used by Seller or in which Seller has any interestconnection with the operation of the Business, includingexcept the Excluded Assets (as defined in Section 1.2), without limitation, all of Seller's and Parent's (to the extent applicable, if any) right, title and interest, subject to Section 10.2, in including the following:
(a) All tangible assets commissions receivable, all customer accounts receivable, and all amounts receivable from broker-dealers and clearing organizations of the Business (other than Inventory set forth on SCHEDULE 2.1(b) attached heretocollectively, the "Receivables"), including, without limitation, tooling, fixtures and equipment used in the manufacture of European Formwork Products (as defined in the Exclusive Manufacturing and Distribution Agreement), set forth on SCHEDULE 2.1(a) attached hereto;; -----------
(b) All Inventoryof Seller's right, includingtitle and interest in, without limitationto, rental and under the fixed assets, leasehold improvements, equipment, set forth vehicles, computers and software, data processing and telecommunications equipment, office equipment, furniture and fixtures, and all other items of tangible personal property of the Business of every kind and description, wherever located, including the assets identified on SCHEDULE 2.1(b) attached hereto;Schedule 1.1(b); ---------------
(c) All supplies, consumable materials, marketing and sales literature, advertising materials, catalogues, consumable or promotional materials and other items of similar character used in the operation of the Subject BusinessBusiness of every kind and description, wherever located;
(d) All customer and supplier lists of the Subject Business;
(e) All bookscustomers, recordsprospects, manuals, lists, files, ledgers, plans, drawings, reports vendors and other materials of parties with whom the Subject Business transacts or pertaining to the Subject Assetshas transacted business, including, without limitation, all sales, marketing, manufacturing and customer files, records and other information (including without limitation, billing and shipping information), vendor information, operating records of every kindkind and description, environmental records, maintenance records, accounting records, purchase, sale and distributor records, price lists, correspondence and quality control records, item masters, information on rental equipment and other products, PIK lists, accounting codes, system codes and other data and information primarily related to and/or material to the conduct of the Subject Business or the other Subject Assets, in whatever form and wherever located (collectively, the "RecordsClient Lists");; ------------
(f) All Contracts right, title and associated Contract Rights set forth interest in, to and under all logos, other than the "Z" logo, all tradenames, trademarks, and trademark registrations and any applications therefor, Internet domain names and applications therefor (including "xxxxxxx-xxxxxx.xxx," "xxxxxxxxxxxxx.xxx" and "xxxxxxxxxxx.xxx") and all domains with such names (the "Internet Assets"), --------------- all copyrights, and copyright registrations and any applications therefor, whether issued or pending, and all other intellectual property, relating to the Business, whether presently existing or under development, in, to or under which Seller has any right of ownership or use or other right (collectively, the "Intellectual Property Assets"), including the assets ---------------------------- identified on SCHEDULE 2.1(f) attached hereto;Schedule 1.1(f); ---------------
(g) All Leases set forth of Seller's right, title and interest in, to and under the contracts, leases, and other agreements, arrangements and commitments (collectively, "Commitments") of the Business, including the Commitments ----------- identified on SCHEDULE 2.1(gSchedule 4.15(a), but, in the case of the Commitment ---------------- identified as item 1 on Schedule 4.15(a) attached hereto;(the "U.S. Clearing Contract"), ---------------- ---------------------- only if Purchaser elects, by written notice delivered to Seller prior to or at the Closing, to assume such Commitment, and other than the Excluded Commitments (as defined in clause (v) of Section 1.2) (collectively, the "Assumed Contracts"); -----------------
(h) All Leasehold Estates, with respect to the Leases set forth on SCHEDULE 2.1(g) attached hereto;
(i) All Leasehold Improvements set forth on SCHEDULE 2.1(i) attached hereto;
(j) All Fixtures and Equipment set forth on SCHEDULE 2.1(j) attached hereto;
(k) All Intellectual Property set forth on SCHEDULE 2.1(k) attached hereto;
(l) All Permits set forth on SCHEDULE 2.1(l) attached hereto;
(m) All computers and, to the extent transferable, related software set forth on SCHEDULE 2.1(m) attached hereto;
(n) All insurance proceeds with respect to the Subject Assets;
(o) All available art work, display units and telephone and fax numbers exclusively related to the Subject Business;
(p) All rights under or pursuant to all warranties, representations and guarantees made by suppliers in connection with the Subject Assets or services furnished to Seller pertaining to the Subject Business or affecting the Subject Assets;
(q) All revenue and other amounts or rights to such revenue or other amounts arising or resulting from, or relating or incident to, any transaction, work, service or other action related to or arising out of the Subject Assets or the Subject Business on or after the Closing Date and all refunds, deposits and prepaid expenses of Seller arising or resulting from, or relating or incident to, any transaction, work, service or other action related to or arising out of the Subject Assets or the Subject Business on or after the Closing Date;
(r) All claims, causes of action, choses in actionrefunds, rights of recovery recovery, rights of setoff and rights of set-off recoupment of any kindkind against, against relating to or pursuant to any Person Assumed Contract and, to the extent that there is any amount with respect thereto reflected as an asset on the Closing Date Balance Sheet (as defined in Paragraph 2.2(c)), all prepayments and deposits;
(i) All of Seller's rights under any noncompetition, confidentiality, or entityintellectual property assignment agreement, includingor any other agreement, without limitationhowever characterized, any liens, security interests, pledges whereby there is a covenant or other rights undertaking on the part of any other person to payment restrict such person's activities with respect to the Business, including its customers, vendors and/or confidential information, or a covenant or other undertaking on the part of any other person, or a right of Seller to enforce payment arising out of require such person, to grant, assign or otherwise transfer any interest, including a license or other right to use or practice, in, to, or under any intellectual property but excluding any such license or other right pursuant to a Commitment which is an Excluded Asset, relating to the Business;
(j) All right, title and interest of Seller, if any, in and to all 800/888 or other telephone and facsimile numbers used in the Business (collectively, the "Phone Numbers") and the non-exclusive right to use, ------------- including in advertising and signage, the name "Xxxxxxx Thrift Trading" during the ninety (90) day period from the Closing Date in connection with the transition of the Business and the Subject Assets, except Assets to Purchaser;
(k) All goodwill of the extent, and only to such extent, arising out of or relating to the Excluded Liabilities or the Excluded AssetsBusiness; and
(sl) The goodwill Any and all other rights and assets owned by Seller and/or used by Seller in the operation of the Business, including all rights of Seller to conduct the Subject BusinessBusiness as it exists at the Closing. All of the foregoing assets being purchased by Purchaser described in this Section 1.1 are hereinafter referred to collectively as the "Subject Assets"; provided, however that the Subject Assets shall not include the Excluded Assets pursuant to Section 2.2. Buyer will have a purchase option (the "Purchase Option"), as set forth in the Transition Agreement, exercisable in accordance with the terms of the Transition Agreement to Purchase additional assets (the "Purchase Option Assets") as set forth on SCHEDULE 2.1(x) attached hereto, and such assets shall be deemed Excluded Assets unless and until they are Purchased by Buyer. Any Purchase Option Assets actually Purchased by Buyer or Dayton shall be deemed Subject Assets for purposes hereunder as of the Second Closing Effective Time." --------------
Appears in 1 contract
Subject Assets. Subject The Seller hereby agrees to sell, assign and deliver to the terms and conditions set forth in this Agreement, Seller will Sell to Buyer, and Buyer will Purchase from Seller at the ClosingClosing (as defined below), free and clear of all Encumbrances liens, mortgages, pledges, options, claims, security interests, conditional sales contracts, title defects, encumbrances, charges and other than Permitted Encumbrancesrestrictions of every kind (collectively, the Subject Assets, defined as "Liens") all of the right, title and interest in and to all of Seller's propertiesthe assets, assets properties and rights of rights, together with any kindreplacements thereof and additions thereto made between the date hereof and the Closing (as defined in Section 3.1), whether tangible or intangibleas hereafter described in this Section 1.1 and as listed on composite Schedule 1.1 (collectively, real or personalthe "Subject Assets"), and owned by Seller or in which Seller has any interest, including, without limitation, all of Seller's and Parent's (to the extent applicable, if any) right, title and interest, subject to Section 10.2, in including the following:
(a) All tangible assets inventories of the fragrance and cosmetic brands PS Fine Cologne for Men, Design (other than Inventory set forth on SCHEDULE 2.1(b) attached heretofor Men and Women), Casual (for Men and Women), Cigar Aficionado, Nautica (for Men and Women), Competition, Mark Cross and Jones Nxx Xxxx (collexxxxxly, the "Brands"), including, without limitation, toolingfinished goods and products, fixtures packaging, labeling, raw materials, components, work-in-process, materials, parts, accessories, supplies, carton, corrugate, shippers, displays, testers, samples, collateral material and equipment used in gifts with purchase, all wherever located and whether now owned or hereafter acquired (collectively, the manufacture of European Formwork Products (as defined in the Exclusive Manufacturing and Distribution Agreement"Inventory"), set forth on SCHEDULE 2.1(a) attached hereto;
(b) All finished goods, products, materials, samples, collateral material, accessories and gifts with purchase relating to the Brands which are returned by customers prior to or following the Closing Date (as defined in Section 3.1) and which relate to sales made by the Seller to such customers prior to the Closing Date and, if returned prior to the Closing Date, are not part of the Inventory, or resold or destroyed directly by the Seller (the "Returns");
(c) The tangible assets and properties, wherever located, relating specifically to the manufacture or assembly of the fragrance and cosmetic brands PS Fine Cologne for Men, Design (for Men and Women), Casual (for Men and Women), Cigar Aficionado, Nautica (for Men and Women) and Competition (the "PSI Brands"), including, without limitation, rental equipmentexisting tools, dies and molds and other manufacturing equipment or materials as set forth on SCHEDULE 2.1(b) attached hereto;
(c) All supplies, marketing and sales literature, advertising materials, catalogues, consumable materials and other items of similar character used in the operation of the Subject BusinessSchedule 1.1(c)(the "Fixed Assets");
(d) All customer and supplier lists of the Subject Business;
(e) All books, records, manuals, lists, files, ledgers, plans, drawings, reports Seller's accounts and other materials accounts receivable and related general intangibles relating to its sales of the Subject Business or pertaining to the Subject Assets, Brands (including, without limitation, all sales, marketing, manufacturing and customer files, records and other information (including without limitation, billing and shipping information), vendor information, operating records the Seller's or its affiliates' lockbox for receipt of every kind, environmental records, maintenance records, accounting records, purchase, sale and distributor records, price lists, correspondence and quality control records, item masters, information on rental equipment and other products, PIK lists, accounting codes, system codes and other data and information primarily related to and/or material to the conduct of the Subject Business or the other Subject Assets, in whatever form and wherever located ("Records");
(f) All Contracts and associated Contract Rights set forth on SCHEDULE 2.1(f) attached hereto;
(g) All Leases set forth on SCHEDULE 2.1(g) attached hereto;
(h) All Leasehold Estates, with respect to the Leases set forth on SCHEDULE 2.1(g) attached hereto;
(i) All Leasehold Improvements set forth on SCHEDULE 2.1(i) attached hereto;
(j) All Fixtures and Equipment set forth on SCHEDULE 2.1(j) attached hereto;
(k) All Intellectual Property set forth on SCHEDULE 2.1(k) attached hereto;
(l) All Permits set forth on SCHEDULE 2.1(l) attached hereto;
(m) All computers and, to the extent transferable, related software set forth on SCHEDULE 2.1(m) attached hereto;
(n) All insurance proceeds with respect to the Subject Assets;
(o) All available art work, display units and telephone and fax numbers exclusively related to the Subject Business;
(p) All rights under or pursuant to all warranties, representations and guarantees made by suppliers in connection with the Subject Assets or services furnished to Seller pertaining to the Subject Business or affecting the Subject Assets;
(q) All revenue and other amounts or rights to such revenue or other amounts arising or resulting from, or relating or incident to, any transaction, work, service or other action related to or arising out of the Subject Assets or the Subject Business on or after the Closing Date and all refunds, deposits and prepaid expenses of Seller arising or resulting from, or relating or incident to, any transaction, work, service or other action related to or arising out of the Subject Assets or the Subject Business on or after the Closing Date;
(r) All claims, causes of action, choses in action, rights of recovery and rights of set-off of any kind, against any Person or entity, including, without limitation, any liens, security interests, pledges or other rights to payment or to enforce payment arising out of or funds relating to the Subject Assetsaccounts and accounts receivable) (collectively, except to the extent, and only to such extent, arising out of or relating to the Excluded Liabilities or the Excluded Assets; and
(s) The goodwill of the Subject Business. All of the foregoing are hereinafter referred to collectively as the "Subject Assets"; provided, however that the Subject Assets shall not include the Excluded Assets pursuant to Section 2.2. Buyer will have a purchase option (the "Purchase OptionReceivables"), as set forth in the Transition Agreement, exercisable in accordance with the terms of the Transition Agreement to Purchase additional assets ; (the "Purchase Option Assets") as set forth on SCHEDULE 2.1(x) attached hereto, and such assets shall be deemed Excluded Assets unless and until they are Purchased by Buyer. Any Purchase Option Assets actually Purchased by Buyer or Dayton shall be deemed Subject Assets for purposes hereunder as of the Second Closing Effective Time.
Appears in 1 contract
Subject Assets. Subject to the terms and conditions set forth in this Agreement, the Seller will Sell agrees to Buyer, sell to the Buyer and the Buyer will Purchase agrees to purchase from the Seller at the Closing, free and clear of all Encumbrances other than the Permitted Encumbrances, the Subject Assets, defined as all of the Seller’s right, title and interest in and to all of Seller's propertiesthe assets owned, assets and rights of any kind, whether tangible used or intangible, real or personal, and owned held by the Seller or in which Seller has any interestconnection with the Subject Business, including, without limitation, all each of Seller's and Parent's (to the extent applicable, if any) right, title and interest, subject to Section 10.2, in following as the followingsame exist on the Closing Date:
(a) All tangible assets (other than Inventory set forth on SCHEDULE 2.1(b) attached hereto)of every kind and description, including, without limitation, all fixed assets, machinery, equipment, tools, tooling, fixtures molds, leasehold improvements, fixtures, furniture, furnishings, vehicles, computer hardware and software, data processing equipment used in the manufacture and other items of European Formwork Products (as defined in the Exclusive Manufacturing and Distribution Agreement)a similar character, set forth wherever located, including, without limitation, those items listed on SCHEDULE 2.1(aSchedule 1.1(a) attached hereto;
(b) All Inventoryinventories, wherever located, including, without limitation, rental equipmentall raw materials, set forth on SCHEDULE 2.1(b) attached heretowork-in-process and finished goods and all such items in transit as of the Closing (collectively, the “Inventory”);
(c) All supplies, packaging materials, marketing and sales literature, advertising materials, cataloguesmatter, consumable materials and other items of similar character used in the operation of the Subject Businesscharacter;
(d) All customer and supplier lists of the Subject Business;
(e) All books, records, manuals, lists, files, ledgers, plans, drawings, reports manuals and other materials of the Subject Business or pertaining to the Subject Assetssimilar materials, wherever located and in whatever form they may be maintained, including, without limitation, all sales, marketingaccount and customer records, personnel and payroll records, purchasing and sale records, vendor lists and related historical information, supplier, manufacturing and customer files, records and other information (including without limitation, billing and shipping information), vendor information, operating records of every kind, environmental records, maintenance records, accounting records, purchase, sale and distributor quality control records, price lists, correspondence and quality control recordsall research and development files (collectively, item mastersthe “Records”);
(e) All credits, information on rental equipment prepaid expenses, deferred charges, advance payments, security deposits and other productssimilar items (collectively, PIK lists, accounting codes, system codes and other data and information primarily related to and/or material to the conduct of the Subject Business or the other Subject Assets, in whatever form and wherever located ("Records"“Prepaids”);
(f) All Contracts and associated Contract Rights set forth on SCHEDULE 2.1(f) attached heretoExcept for accounts receivable from the Parent, all accounts receivable, whether billed or unbilled (collectively, the “Accounts Receivable”);
(g) All Leases set forth logos, product specifications, blue-prints, drawings, formulae, patents and any applications therefor, trade names, trademarks, trademark registrations and any applications therefor, copyrights, copyright registrations and any applications therefor, whether issued or pending, including, without limitation, those items listed on SCHEDULE 2.1(gSchedule 1.1(g) attached heretohereto and the names “Custom Products Corporation”, “Polyclutch”, “Polyvolt” and “Puljak” and any derivatives of any of the foregoing, and all inventions, improvements, secret processes, know-how, trade secrets and technical knowledge of the Subject Business;
(h) All Leasehold Estates, with respect to the Leases set forth on SCHEDULE 2.1(g) attached heretobacklog of customer orders;
(i) All Leasehold Improvements set forth on SCHEDULE 2.1(i) attached heretoTo the extent their transfer is permitted by applicable Law, all Governmental Approvals, and any applications therefor, held by the Seller or used in connection with the Subject Business;
(j) All Fixtures telephone and Equipment set forth on SCHEDULE 2.1(j) attached heretofacsimile numbers, email addresses, domain names and web sites, including, without limitation, all right, title and interest in and to “xxx.xxxxxxxxxx.xxx” and “xxx.xxxxxxxx.xxx”;
(k) All Intellectual Property of the Seller’s right, title and interest in, to and under those Contracts set forth on SCHEDULE 2.1(kSchedule 1.1(k) attached hereto;
hereto (l) All Permits set forth on SCHEDULE 2.1(l) attached hereto;
(m) All computers andcollectively, to the extent transferable, related software set forth on SCHEDULE 2.1(m) attached hereto;
(n) All insurance proceeds with respect to the Subject Assets;
(o) All available art work, display units and telephone and fax numbers exclusively related to the Subject Business;
(p) All rights under or pursuant to all warranties, representations and guarantees made by suppliers in connection with the Subject Assets or services furnished to Seller pertaining to the Subject Business or affecting the Subject Assets;
(q) All revenue and other amounts or rights to such revenue or other amounts arising or resulting from, or relating or incident to, any transaction, work, service or other action related to or arising out of the Subject Assets or the Subject Business on or after the Closing Date and all refunds, deposits and prepaid expenses of Seller arising or resulting from, or relating or incident to, any transaction, work, service or other action related to or arising out of the Subject Assets or the Subject Business on or after the Closing Date;
(r) All claims, causes of action, choses in action, rights of recovery and rights of set-off of any kind, against any Person or entity“Assumed Contracts”), including, without limitation, any liens, security interests, pledges right to receive payment for products sold or other rights to payment or to enforce payment arising out of or relating services rendered by the Subject Business pursuant to the Subject AssetsAssumed Contracts and to assert claims and to take other rightful actions in respect of breaches, except to defaults and other violations of the extent, and only to such extent, arising out of or relating to the Excluded Liabilities or the Excluded AssetsAssumed Contracts; and
(sl) The goodwill goodwill, and all other intangible assets not previously referred to in this Paragraph 1.1, of the Subject Business. All of the foregoing assets being purchased by the Buyer as described in this Paragraph 1.1 are hereinafter referred to collectively as the "“Subject Assets"; provided, however that the Subject Assets shall not include the Excluded Assets pursuant to Section 2.2. Buyer will have a purchase option (the "Purchase Option"), as set forth in the Transition Agreement, exercisable in accordance with the terms of the Transition Agreement to Purchase additional assets (the "Purchase Option Assets") as set forth on SCHEDULE 2.1(x) attached hereto, and such assets shall be deemed Excluded Assets unless and until they are Purchased by Buyer. Any Purchase Option Assets actually Purchased by Buyer or Dayton shall be deemed Subject Assets for purposes hereunder as of the Second Closing Effective Time”.
Appears in 1 contract
Subject Assets. Subject The Seller hereby agrees to sell, assign and deliver to the terms and conditions set forth in this Agreement, Seller will Sell to Buyer, and Buyer will Purchase from Seller at the ClosingClosing (as defined in Section 3.1), free and clear of all Encumbrances liens, mortgages, pledges, options, claims, security interests, conditional sales contracts, title defects, encumbrances, charges and other than Permitted Encumbrancesrestrictions of every kind (collectively, the Subject Assets, defined as “Liens”) all of the right, title and interest in and to all of Seller's propertiesthe assets, assets properties and rights of rights, together with any kindreplacements thereof and additions thereto made between the date hereof and the Closing (as defined in Section 3.1), whether tangible or intangibleas hereafter described in this Section 1.1 and as listed on composite Schedule 1.1 (collectively, real or personalthe “Subject Assets”), and owned by Seller or in which Seller has any interest, including, without limitation, all of Seller's and Parent's (to the extent applicable, if any) right, title and interest, subject to Section 10.2, in including the following:
(a) All tangible assets (other than Inventory set forth on SCHEDULE 2.1(b) attached hereto)inventories of fragrance, skincare and color products, including, without limitation, toolingfinished goods and products, fixtures packaging, labeling, raw materials, components, work-in-process, materials, parts, accessories, supplies, tote, corrugate, shippers, displays, testers, samples, collateral material and equipment used in gifts with purchase, wherever located (collectively, the manufacture of European Formwork Products (as defined in the Exclusive Manufacturing and Distribution Agreement“Inventory”), set forth on SCHEDULE 2.1(a) attached hereto;
(b) All finished goods and products relating to the Seller’s inventory which are returned by customers prior to or following the Closing Date (as defined in Section 3.1) and which relate to sales made by the Seller to such customers prior to the Closing Date and, if returned prior to the Closing Date, are not part of the Inventory, or resold or destroyed directly by the Seller (the “Returns”);
(c) All of the Seller’s rights, title and interest in and to the agreements, purchase orders and commitments (including, but not limited to, binding forecasts provided to vendors) related to sales of the Inventory that are listed on Schedule 1.1(c) and the Deposits (as defined in Section 2.1(iv), and subject to the Buyer’s payment to Seller in accordance with Section 2.1(iv), (collectively, the “Contracts”);
(d) All of the Seller’s rights, title and interest in and to the licenses, permits, approvals and other authorizations (other than Acquired Intellectual Property which is addressed in Section 1.1(h) below), issued to it by any governmental authority, including a court (each, a “Governmental Authority”) which are used in connection with the sale of the Inventory, including those listed on Schedule 1.1(d), to the extent transferable to the Buyer (the “Regulatory Licenses”);
(e) All proceeds, rights, claims, credits, causes of action or rights of set-off against third parties relating to the Subject Assets, including, without limitation, rental equipmentunliquidated rights under manufacturers’ and vendors’ warranties, set forth but excluding Insurance Claims and claims for refunds or credits of any taxes that relate to any taxable period (or portion thereof) that ends on SCHEDULE 2.1(b) attached heretoor before the Closing Date (the “Claims”);
(cf) All suppliesrights and claims pursuant to any policy of property and casualty insurance underwritten by any person (as defined in Section 15.14(e)) arising from any casualty loss or damage to the Subject Assets occurring from the date hereof through the Closing, marketing and sales literaturewhether or not then reported, advertising materials, catalogues, consumable materials and other items of similar character used in but only to the operation extent the Buyer pays the allocable portion of the Purchase Price with regard to such damaged Subject BusinessAssets as if such loss had not occurred (the “Insurance Claims”);
(dg) All customer Copies of all books and supplier lists of the Subject Business;
(e) All books, records, manuals, lists, files, ledgers, plans, drawings, reports and other materials of the Subject Business or records pertaining to the Subject Assets, including, without limitation, all sales, marketing, manufacturing and customer filesbooks, records and other information (including without limitationfiles relating to customers, billing manufacturers and shipping information), vendor informationsuppliers of the Seller, operating records data, business and marketing plans, electronic data files, budgets, regulatory filings, warranties, guaranties, bills of every kindsale, environmental recordscustomer and supplier lists, maintenance records, copies of financial and accounting records, purchaseexecuted Contracts, sale and distributor credit records, price lists, correspondence and quality control records, item masters, information on rental equipment other similar documents and other products, PIK lists, accounting codes, system codes and other data and information primarily related to records used and/or material to the conduct of the Subject Business or the other Subject Assets, in whatever form and wherever located ("Records");
(f) All Contracts and associated Contract Rights set forth on SCHEDULE 2.1(f) attached hereto;
(g) All Leases set forth on SCHEDULE 2.1(g) attached hereto;
(h) All Leasehold Estates, with respect to the Leases set forth on SCHEDULE 2.1(g) attached hereto;
(i) All Leasehold Improvements set forth on SCHEDULE 2.1(i) attached hereto;
(j) All Fixtures and Equipment set forth on SCHEDULE 2.1(j) attached hereto;
(k) All Intellectual Property set forth on SCHEDULE 2.1(k) attached hereto;
(l) All Permits set forth on SCHEDULE 2.1(l) attached hereto;
(m) All computers and, to the extent transferable, related software set forth on SCHEDULE 2.1(m) attached hereto;
(n) All insurance proceeds with respect to the Subject Assets;
(o) All available art work, display units and telephone and fax numbers exclusively related to the Subject Business;
(p) All rights under or pursuant to all warranties, representations and guarantees made by suppliers useful in connection with the Subject Assets or services furnished to Seller pertaining to (collectively, the Subject Business or affecting the Subject Assets;“Records”); and
(qh) All revenue all copyrights, copyright registrations and other amounts applications, trade names (including, but not limited to, “Sovereign Sales”), UPC codes, trade dress, (whether or rights to such revenue not registered or other amounts arising by whatever name or resulting fromdesignation), owned, applied for or used by, or relating registered in the name of, the Seller in connection with the Inventory (collectively, the “Acquired Intellectual Property”), (ii) customer lists, supplier relationships, all proprietary data, processes, formulations, technical or incident tomanufacturing know-how or information (and materials embodying such information), any transactionowned by or used by, work, service or other action related to or arising out of the Subject Assets or Seller in connection with the Subject Business on or after the Closing Date Inventory and all refunds, deposits and prepaid expenses of Seller arising or resulting from, or relating or incident to, any transaction, work, service or other action related to or arising out of the Subject Assets or the Subject Business on or after the Closing Date;
(r) All claims, causes of action, choses in action, rights of recovery and rights of set-off of any kind, against any Person or entity, including, without limitation, any liens, security interests, pledges or other rights to payment or to enforce payment arising out of or goodwill relating to the Subject Assets, except to the extent, and only to such extent, arising out of or relating to the Excluded Liabilities or the Excluded Assets; and
Assets (s) The goodwill of the Subject Business. All of the foregoing are hereinafter referred to collectively as the "Subject Assets"; provided, however that the Subject Assets shall not include the Excluded Assets pursuant to Section 2.2. Buyer will have a purchase option (the "Purchase Option"), as set forth in the Transition Agreement, exercisable in accordance with the terms of Acquired Intellectual Property, the Transition Agreement to Purchase additional assets (the "Purchase Option “Intangible Assets") as set forth on SCHEDULE 2.1(x) attached hereto, and such assets shall be deemed Excluded Assets unless and until they are Purchased by Buyer. Any Purchase Option Assets actually Purchased by Buyer or Dayton shall be deemed Subject Assets for purposes hereunder as of the Second Closing Effective Time”).
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