The Merger and Asset Purchase Sample Clauses

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The Merger and Asset Purchase 

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• Asset Purchase (a) Upon the terms and subject to the conditions set forth in this Agreement, at the Asset Closing, the Company shall, and shall cause its Subsidiaries to, sell, assign, transfer, convey and deliver to Purchaser, and Purchaser shall, and/or shall cause its Subsidiaries to, purchase, acquire and accept from the Company and its Subsidiaries, free and clear of all Liens other than Permitted Liens, all of the Company’s and such Subsidiaries’ respective right, title and interest in and to the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date (collectively, the “Purchased Assets”): (i) the Owned Real Property (as defined in the Merger Agreement) and any fixtures, machinery, equipment and tangible personal property attached to or located on the Owned Real Property that relate to or are used or held for use in connection with the SMS Business; (ii) all inventories (including raw materials, purchased goods, parts, containers, recycled materials, work in process, supplies, finished goods and demo and consignment inventory) on the books of the Company or its Subsidiaries; (iii) all lists of current, former and prospective customers, suppliers, resellers and vendors, customers’ files, credit information, parts lists, business correspondence, business lists, brochures, manuals, sales literature, promotional literature and other selling, advertising and marketing materials and all other similar assets and rights related to the conduct of the SMS Business; (iv) all of the machinery, equipment, tools, spare parts, all transportation and office equipment, computers, furniture, furnishings, vehicles, and other fixed assets and personal property owned by the Company and its Subsidiaries and related to, used or held for use in connection with the SMS Business (including any and all hard drives, disks, diskettes, tapes or other tangible media), and in the case of any such items which are leased or licensed by the Company or its Subsidiaries, the Company’s and such Subsidiaries’ leasehold or license interest therein; (v) all Contracts to which any of the Company or its Subsidiaries are a party to the extent they are related to the SMS Business, including the SMS Agreements (collectively, the “Assumed Contracts”); (vi) all Intellectual Property owned by the Company and its Subsidiaries and that is related to the SMS Business and was used, is used or is held for use in the SMS Business (the “Transferred Business Intellectual Property”); (vii) all information technology systems, network or telecommunications equipment and software, desktop computer software, accounting, finance and database software, general software development and control systems, and tools, environments and other general information technology functionality, in each case that is used in the operation of the SMS Business; (viii) all Permits used in the SMS Business; (ix) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the SMS Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (x) all deposits to the extent made by the Company or its Subsidiaries in connection with the SMS Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to other Assumed Liabilities; (xi) all prepaid assets paid by the Company or its Subsidiaries to the extent in connection with the SMS Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to Assumed Liabilities; (xii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, xxxxxx or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the SMS Business, Purchased Assets or Assumed Liabilities; (xiii) all financial and other books and all other documents, microfilm and business records (other than Tax Returns) and correspondence, wherever located, related to the SMS Business, the Purchased Assets or the Assumed Liabilities; (xiv) personnel records for each Transferred SMS Employee (subject to the prior consent of such Transferred SMS Employee to the extent such consent is required by applicable Law in connection with the transfer of such personnel records of such Transferred SMS Employee); and (xv) all other assets of the Company and its Subsidiaries that relate to, or are used in the conduct of, the SMS Business, are not Excluded Assets and are not of a category or type described in the foregoing clauses of this Section 2.1(a). (b) The Seller Parties and the Purchaser Parties expressly understand and agree that the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date shall be excluded from the Purchased Assets (the “Excluded Assets”): (i) all capital stock or other equity interests in any Person; (ii) all rights arising from Excluded Liabilities; and (iii) the Maintenance Agreements; (iv) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the Maintenance Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (v) all deposits to the extent made by the Company or its Subsidiaries to the extent related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vi) all prepaid assets paid by the Company or its Subsidiaries to the extent in related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, xxxxxx or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the Maintenance Agreements; (viii) all other assets of the Company and its Subsidiaries that relate exclusively to, or are used exclusively in the conduct of, the Maintenance Business; and (ix) any assets that are excluded from the Purchased Assets pursuant to Section 3.1(c).

• Acquisition Transactions The Company shall provide the holder of this Warrant with at least twenty (20) days’ written notice prior to closing thereof of the terms and conditions of any of the following transactions (to the extent the Company has notice thereof): (i) the sale, lease, exchange, conveyance or other disposition of all or substantially all of the Company’s property or business, or (ii) its merger into or consolidation with any other corporation (other than a wholly-owned subsidiary of the Company), or any transaction (including a merger or other reorganization) or series of related transactions, in which more than 50% of the voting power of the Company is disposed of.

• The Merger On the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL (including Section 251(h) of the DGCL), Merger Sub shall be merged with and into the Company at the Effective Time. At the Effective Time, the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation (the “Surviving Corporation”).

• Consummation of Merger The parties hereto expressly acknowledge that the consummation of the transactions hereunder is subject to consummation of the Merger. Nothing herein shall be construed to require Seller to consummate the Merger or take steps in furtherance thereof.

• The Merger Closing (a) As soon as reasonably practicable on the Closing Date, the Company and Merger Subsidiary shall execute and file articles of merger with the Department of Financial Institutions of the State of Wisconsin and make all other filings or recordings required by the WBCL to be made in connection with the Merger. The Merger shall become effective at such time as the articles of merger are duly filed with the Department of Financial Institutions of the State of Wisconsin or, if agreed to by the Company and Parent, at such later time as is specified in the articles of merger (the "Effective Time"). (b) Upon the terms and subject to the conditions set forth herein, at the Effective Time, Merger Subsidiary shall be merged with and into the Company in accordance with the requirements of the WBCL, whereupon the separate existence of Merger Subsidiary shall cease. The Company shall be the surviving corporation in the Merger (the "Surviving Corporation"). (c) The Merger will have the effects set forth in the WBCL, including the effects set forth in Section 180.1106 of the WBCL. Without limiting the generality of the foregoing, and subject thereto, from and after the Effective Time, the Surviving Corporation shall possess all the rights, privileges, immunities, powers and purposes and shall assume and be liable for all the liabilities, obligations and penalties of the Company and Merger Subsidiary. (d) The closing of the transactions contemplated hereby (the "Closing") shall take place at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square, New York, New York 10036-6522, at 10:00 a.m. local time, as soon as reasonably practicable, but in any event within two (2) Business Days after the satisfaction or, to the extent permitted hereby, waiver of all of the conditions to the Merger, other than those conditions that by their nature are to be fulfilled at Closing, but subject to the satisfaction or waiver of such conditions, unless this Agreement has been heretofore terminated pursuant to its terms or another time or date is agreed to in writing by the parties hereto (the actual time and date of the Closing being referred to herein as the "Closing Date").

• of the Merger Agreement Section 6.10 of the Merger Agreement is hereby amended and restated in its entirety as follows:

• The Mergers (a) Upon the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL, at the Effective Time, Parent Sub shall be merged with and into the Company. Following the First Company Merger, the separate corporate existence of Parent Sub shall cease, and the Company shall continue as the Surviving Corporation and a direct, wholly owned Subsidiary of Parent. Upon the terms and subject to the provisions of this Agreement, as soon as practicable on the Closing Date, the applicable parties hereto shall file a certificate of merger (the “First Certificate of Merger”) with the Secretary of State of the State of Delaware (the “Delaware Secretary of State”), executed in accordance with the relevant provisions of the DGCL, to effect the First Company Merger. The First Company Merger shall become effective at such time on the Closing Date as the applicable parties hereto shall agree in writing and shall specify in the First Certificate of Merger (the time the First Company Merger becomes effective being the “Effective Time”). (b) Upon the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL and the DLLCA, at the Second Company Merger Effective Time, the Surviving Corporation shall be merged with and into LLC Sub. Following the Second Company Merger, the separate corporate existence of the Surviving Corporation shall cease, and LLC Sub shall be the Surviving Company and a direct, wholly owned Subsidiary of Parent. Upon the terms and subject to the provisions of this Agreement, as soon as practicable on the Closing Date, the applicable parties hereto shall file a certificate of merger (the “Second Certificate of Merger”) with the Delaware Secretary of State, executed in accordance with the relevant provisions of the DGCL and DLLCA, to effect the Second Company Merger. The Second Company Merger shall become effective one minute after the Effective Time (the time the Second Company Merger becomes effective being the “Second Company Merger Effective Time”), which the applicable parties hereto shall specify in the Second Certificate of Merger.

• Consolidation, Merger, Sale or Purchase of Assets, etc Holdings and the Borrower will not, and will not permit any of their respective Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted: (a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property; (b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07; (c) the advances, investments and loans permitted pursuant to Section 9.05; (d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof; (e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged; (f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license; (g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer); (h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation); (i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation); (j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); ----------------------------- (k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;

• CONSOLIDATION, MERGER AND SALE Unless a Company Order or supplemental indenture establishing a series of Securities provides otherwise, nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with or into any other corporation or corporations (whether or not affiliated with the Company), or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of all or substantially all of the property of the Company or its successor or successors as an entirety, or substantially as an entirety, to any other corporation (whether or not affiliated with the Company or its successor or successors) authorized to acquire and operate the same; provided, however, the Company hereby covenants and agrees that, upon any such consolidation, merger, sale, conveyance, transfer or other disposition, the due and punctual payment of the principal of (premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture with respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the Company, shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act as then in effect) satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall have been merged, or by the entity which shall have acquired such property.

• Closing of the Merger The closing of the Merger (the "Closing") will take place at a time and on a date to be specified by the parties, which shall be no later than the second business day after satisfaction of the latest to occur of the conditions set forth in Article 5 (the "Closing Date"), at the offices of Sperry Young & Stoecklein, 1850 X. Xxxxxxxo Xx., Xxxxx 000, Xxx Xxxxx, Xxxxxx, xxxxxx xxxxxxx xime, date or place is agreed to in writing by the parties hereto.