The Purchase and Sale of Assets. Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, covenants and agreements of Seller contained herein, at the Closing, Seller shall sell, convey, transfer, assign and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller, free and clear of all Liabilities and Encumbrances, all of the assets, properties, rights, interests, claims and goodwill of Seller, tangible and intangible, of every kind and description, used, held for use or usable in the Business, as the same shall exist as of the Closing Date (including without limitation the assets acquired by Seller from SERS pursuant to the SERS Assignment and Xxxx of Sale, which assets represent all of the SERS assets necessary and currently used in SERS’ business (including any and all Intellectual Property of SERS) (the “SERS Assets”)), other than the Excluded Assets (collectively, the “Acquired Assets”). The Acquired Assets shall include, without limitation: (a) all tangible personal property used in connection with the Business (which individually or in the aggregate have a value of Two Hundred Fifty Dollars ($250.00) or greater) including, without limitation, the tangible property set forth on Schedule 2.1(a); *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. (b) all inventory of Seller (except as set forth on Schedule 2.2(m)), including all materials and supplies, all work in process and all finished products and supplies owned and/or used in connection with the Business as set forth in Schedule 2.1(b); (c) all rights of Seller under contracts and leases relating to the Business listed on Schedule 2.1(c) , which are all of the contracts necessary to operate the Business as presently conducted (the “Assigned Contracts”); (d) all Permits relating to the acquisition or ownership of the Acquired Assets or the operation of the Business; (e) all data, records, files, manuals, blueprints and other documentation related to the Acquired Assets and the operation of the Business including (i) service and warranty records; (ii) sales support and promotion materials, creative materials, art work, photographs, public relations and advertising material, studies, reports, shipping materials, office supplies and materials, sales and marketing files, correspondence and other similar documents and records used in the Business, whether in electronic form or otherwise; (iii) all client, customer and supplier lists and order information, telephone numbers and electronic mail addresses and the other information with respect to past, present or prospective clients, customers and suppliers; and (iv) accounting records, cost and pricing information, sales and credit records, catalogs and brochures relating to the Business, purchasing records and records relating to suppliers; (f) all transferable Intellectual Property owned or used by Seller and assignable Third Party Licenses presently held by Seller in connection with the Acquired Assets or the Business as set forth on Schedule 2.1(f), including all goodwill associated with the trademarks, service marks, trade names, all URLs (whether owned, licensed, leased or used in the Business), including, but not limited to, those listed in Schedule 2.1(f), all key word advertising rights granted by the trademarks, service marks, trade names, and URLs (regardless of the search engine marketing company associated with such advertising), object codes and source codes (including all copies thereof and related documentation), subject to Section 2.2(m), the right to xxx and collect for past, present or future infringement of the Intellectual Property, the right to create derivative works for any copyrighted works (including the right to exploit the copyrighted works for subsidiary purposes and in different media and by future methods of exploitation) and all causes of action related to the Intellectual Property; (g) all policies and procedures, methods of delivery of services, trade secrets, disks, drawings and specifications, market studies, consultants’ reports, prototypes, and all similar property of any nature, tangible or intangible, owned by Seller and used in connection with the Business, including, but not limited to, any files, notices or documents related to Better Business Bureau offices, Attorney General’s or other state or federal agencies related to customer complaints; *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. (h) all goodwill incident to the Business, to the extent assignable by Seller, including, but not limited to, the value of the name(s) associated with the Business, including, but not limited to, “VMC”, “VMC Satellite”, “XXXXxxxxxxxx.xxx,” “Xxxxxxxxx.xxx,” “XxxxxxXxxxxxXxxxxxxXxxxxxxXXX.xxx” and “X-X-X-X.xxx” or any derivative thereof (the rights to which shall be assigned to Buyer as a condition to Closing), and the value of good customer relations; (i) all computers, equipment, Software, automation systems, accounting systems, source codes and master disks of source codes, and other proprietary information owned or licensed, whether for general business usage (e.g., accounting, word processing, graphics, spreadsheet analysis, etc.), or specific, unique-to-the-business usage, owned by, or licensed to, Seller and used in the operation of the Business as set forth on Schedule 2.1(i); (j) all prepaid expenses, deposits, claims for refunds and rights to offset associated with the Business or the Acquired Assets other than those associated with the Retained Liabilities and as set forth in Section 2.2(f); (k) except as set forth on Schedule 2.1(k), all other intangible assets (including all claims, contract rights and warranty and product liability claims against third parties) relating to the Acquired Assets or the Business; (l) all insurance benefits, including rights and proceeds, arising from or relating to the Acquired Assets prior to the Closing; (m) except as set forth on Schedule 2.2, all rights, claims, credits, causes of action or rights of set-off of Seller against third parties relating to the Business or the Acquired Assets, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent; (n) the excess inventory for the *** rebate certificates (“Rebate Certificates”) as specifically set forth on Schedule 2.1(n) (the “Excess Inventory”); and (o) all of the SERS Assets. This Agreement shall not constitute an agreement or attempted agreement to transfer, sublease, sublicense or assign any privilege, right or interest in any written or oral license, agreement, commitment, contract or understanding (a “Contract”) or Permit or any claim, right or benefit arising thereunder or resulting therefrom, if an attempted assignment thereof without the consent required or necessary of a third party would constitute a breach or violation thereof or affect adversely the rights of Seller or Buyer thereunder. If a consent of a third party which is required in order to assign any interest is not obtained prior to the Closing Date, or if an attempted assignment would be ineffective or would adversely affect the ability of Seller to convey its interest to Buyer, Seller shall cooperate with Buyer in any lawful arrangement to provide that Buyer shall receive Seller’s entire interest in the benefits under any such Contract or Permit, including, without limitation, enforcement for the benefit of Buyer of *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. any and all rights of Seller against any other party thereto arising out of the breach or cancellation thereof by such party or otherwise; provided, however, that nothing contained in this paragraph shall affect the liability, if any, of Seller or recourse of Buyer at law or in equity, or as provided in this Agreement, for failing to have disclosed the need for such consent or approval. Notwithstanding the foregoing, the transfer of the Acquired Assets pursuant to this Agreement shall not include the assumption of any Liability or Encumbrance in respect thereof.
Appears in 1 contract
The Purchase and Sale of Assets. Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, covenants and agreements of Seller contained herein, at the Closing, Seller shall sell, convey, transfer, assign and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller, free and clear of all Liabilities and Encumbrances, all of the assets, properties, rights, interests, claims and goodwill of Seller, tangible and intangible, of every kind and description, used, held for use or usable in the Business, as the same shall exist as of the Closing Date (including without limitation the assets acquired by Seller from SERS pursuant to the SERS Assignment and Xxxx of Sale, which assets represent all of the SERS assets necessary and currently used in SERS’ business (including any and all Intellectual Property of SERS) (the “SERS Assets”)), other than the Excluded Assets (collectively, the “Acquired Assets”). The Acquired Assets shall include, without limitation:
(a) all tangible personal property used in connection with the Business (which individually or in the aggregate have a value of Two Hundred Fifty Dollars ($250.00) or greater) including, without limitation, the tangible property set forth on Schedule 2.1(a); *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission.;
(b) all inventory of Seller (except as set forth on Schedule 2.2(m)), including all materials and supplies, all work in process and all finished products and supplies owned and/or used in connection with the Business as set forth in Schedule 2.1(b);
(c) all rights of Seller under contracts and leases relating to the Business listed on Schedule 2.1(c) , which are all of the contracts necessary to operate the Business as presently conducted (the “Assigned Contracts”);
(d) all Permits relating to the acquisition or ownership of the Acquired Assets or the operation of the Business;
(e) all data, records, files, manuals, blueprints and other documentation related to the Acquired Assets and the operation of the Business including (i) service and warranty records; (ii) sales support and promotion materials, creative materials, art work, photographs, public relations and advertising material, studies, reports, shipping materials, office supplies and materials, sales and marketing files, correspondence and other similar documents and records used in the Business, whether in electronic form or otherwise; (iii) all client, customer and supplier lists and order information, telephone numbers and electronic mail addresses and the other information with respect to past, present or prospective clients, customers and suppliers; and (iv) accounting records, cost and pricing information, sales and credit records, catalogs and brochures relating to the Business, purchasing records and records relating to suppliers;
(f) all transferable Intellectual Property owned or used by Seller and assignable Third Party Licenses presently held by Seller in connection with the Acquired Assets or the Business as set forth on Schedule 2.1(f), including all goodwill associated with the trademarks, service marks, trade names, all URLs (whether owned, licensed, leased or used in the Business), including, but not limited to, those listed in Schedule 2.1(f), all key word advertising rights granted by the trademarks, service marks, trade names, and URLs (regardless of the search engine marketing company associated with such advertising), object codes and source codes (including all copies thereof and related documentation), subject to Section 2.2(m), the right to xxx and collect for past, present or future infringement of the Intellectual Property, the right to create derivative works for any copyrighted works (including the right to exploit the copyrighted works for subsidiary purposes and in different media and by future methods of exploitation) and all causes of action related to the Intellectual Property;
(g) all policies and procedures, methods of delivery of services, trade secrets, disks, drawings and specifications, market studies, consultants’ reports, prototypes, and all similar property of any nature, tangible or intangible, owned by Seller and used in connection with the Business, including, but not limited to, any files, notices or documents related to Better Business Bureau offices, Attorney General’s or other state or federal agencies related to customer complaints; *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission.;
(h) all goodwill incident to the Business, to the extent assignable by Seller, including, but not limited to, the value of the name(s) associated with the Business, including, but not limited to, “VMC”, “VMC Satellite”, “XXXXxxxxxxxx.xxx,” “Xxxxxxxxx.xxx,” “XxxxxxXxxxxxXxxxxxxXxxxxxxXXX.xxx” and “X-X-X-X.xxx” or any derivative thereof (the rights to which shall be assigned to Buyer as a condition to Closing), and the value of good customer relations;
(i) all computers, equipment, Software, automation systems, accounting systems, source codes and master disks of source codes, and other proprietary information owned or licensed, whether for general business usage (e.g., accounting, word processing, graphics, spreadsheet analysis, etc.), or specific, unique-to-the-business usage, owned by, or licensed to, Seller and used in the operation of the Business as set forth on Schedule 2.1(i);
(j) all prepaid expenses, deposits, claims for refunds and rights to offset associated with the Business or the Acquired Assets other than those associated with the Retained Liabilities and as set forth in Section 2.2(f);
(k) except as set forth on Schedule 2.1(k), all other intangible assets (including all claims, contract rights and warranty and product liability claims against third parties) relating to the Acquired Assets or the Business;
(l) all insurance benefits, including rights and proceeds, arising from or relating to the Acquired Assets prior to the Closing;
(m) except as set forth on Schedule 2.2, all rights, claims, credits, causes of action or rights of set-off of Seller against third parties relating to the Business or the Acquired Assets, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent;
(n) the excess inventory for the *** rebate certificates (“Rebate Certificates”) as specifically set forth on Schedule 2.1(n) (the “Excess Inventory”); and
(o) all of the SERS Assets. This Agreement shall not constitute an agreement or attempted agreement to transfer, sublease, sublicense or assign any privilege, right or interest in any written or oral license, agreement, commitment, contract or understanding (a “Contract”) or Permit or any claim, right or benefit arising thereunder or resulting therefrom, if an attempted assignment thereof without the consent required or necessary of a third party would constitute a breach or violation thereof or affect adversely the rights of Seller or Buyer thereunder. If a consent of a third party which is required in order to assign any interest is not obtained prior to the Closing Date, or if an attempted assignment would be ineffective or would adversely affect the ability of Seller to convey its interest to Buyer, Seller shall cooperate with Buyer in any lawful arrangement to provide that Buyer shall receive Seller’s entire interest in the benefits under any such Contract or Permit, including, without limitation, enforcement for the benefit of Buyer of [*** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission*] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. any and all rights of Seller against any other party thereto arising out of the breach or cancellation thereof by such party or otherwise; provided, however, that nothing contained in this paragraph shall affect the liability, if any, of Seller or recourse of Buyer at law or in equity, or as provided in this Agreement, for failing to have disclosed the need for such consent or approval. Notwithstanding the foregoing, the transfer of the Acquired Assets pursuant to this Agreement shall not include the assumption of any Liability or Encumbrance in respect thereof.
Appears in 1 contract
The Purchase and Sale of Assets. Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, covenants and agreements of Seller contained herein, at the Closing, Seller Purchaser shall purchase and accept from Sellers for the Purchase Price (as defined in Section 2 herein), and Sellers shall sell, conveyassign, transfer, assign convey and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller, free and clear of all Liabilities and EncumbrancesPurchaser, all of the assets, properties, Sellers' respective rights, intereststitle and interest in and to the following assets (the "Assets"):
1.1 Sellers' accounts receivables, claims security deposits, and goodwill of Sellerprepayments except those receivables identified on SCHEDULE 1.1;
1.2 The contracts between the Sellers and the producers, tangible advertisers, employees, and intangibleindependent contractors listed on SCHEDULE 1.2;
1.3 All Sellers' program archives and interviews ;
1.4 The furniture and fixtures listed in SCHEDULE 1.4;
1.5 The desktop computers, of every kind printers, software and descriptionequipment listed in SCHEDULE 1.5. In the event that any computers, usedprinters, held for use software or usable equipment located at the Sellers' facilities (the "Facilities") and used in the BusinessBusiness are not owned by the Sellers, as Sellers will cause the same shall exist as owner of such computers, printers, software or equipment to enter into an agreement providing for Purchaser's use such property free of charge or at such owner's actual cost (if there is a cost associated with such equipment) for a period of not less than twelve (12) months;
1.6 The production equipment listed in SCHEDULE 1.6;
1.7 The office leases for certain facilities listed in SCHEDULE 1.7; and
1.8 All intellectual property owned by Sellers that is associated with the Closing Date (assigned radio programs and program archives, including without limitation the assets acquired by Seller from SERS pursuant all of Sellers' right title and interest in and to the SERS Assignment and Xxxx of Sale, which assets represent all of the SERS assets necessary and currently used in SERS’ business (including name "Global Media," but excluding any and all Intellectual Property of SERS) (trade names trademarks or other intellectual property that includes the “SERS Assets”)), other than the Excluded Assets (collectively, the “Acquired Assets”). The Acquired Assets shall include, without limitation:
(a) all tangible personal property used in connection with the Business (which individually name "Winstar." Purchaser acknowledges that Sellers make no representations or in the aggregate have a value of Two Hundred Fifty Dollars ($250.00) or greater) including, without limitation, the tangible property set forth on Schedule 2.1(a); *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission.
(b) all inventory of Seller (except as set forth on Schedule 2.2(m)), including all materials and supplies, all work in process and all finished products and supplies owned warranties regarding any trademarks and/or used in connection with the Business as set forth in Schedule 2.1(b);
(c) all rights of Seller under contracts and leases relating to the Business listed on Schedule 2.1(c) , which are all of the contracts necessary to operate the Business as presently conducted (the “Assigned Contracts”);
(d) all Permits relating to the acquisition or ownership of the Acquired Assets or the operation of the Business;
(e) all data, records, files, manuals, blueprints and other documentation related to the Acquired Assets and the operation of the Business including (i) service and warranty records; (ii) sales support and promotion materials, creative materials, art work, photographs, public relations and advertising material, studies, reports, shipping materials, office supplies and materials, sales and marketing files, correspondence and other similar documents and records used in the Business, whether in electronic form or otherwise; (iii) all client, customer and supplier lists and order information, telephone numbers and electronic mail addresses and the other information with respect to past, present or prospective clients, customers and suppliers; and (iv) accounting records, cost and pricing information, sales and credit records, catalogs and brochures relating to the Business, purchasing records and records relating to suppliers;
(f) all transferable Intellectual Property owned or used by Seller and assignable Third Party Licenses presently held by Seller in connection with the Acquired Assets or the Business as set forth on Schedule 2.1(f), including all goodwill associated with the trademarks, service marks, trade names, all URLs (whether owned, licensed, leased or used in the Business), including, but not limited to, those listed in Schedule 2.1(f), all key word advertising rights granted by the trademarks, service marks, trade names, and URLs (regardless of the search engine marketing company associated with such advertising), object codes that Sellers have not taken any steps to perfect their rights in and source codes (including all copies thereof and related documentation), subject to Section 2.2(m), the right to xxx and collect for past, present or future infringement of the Intellectual Property, the right to create derivative works for any copyrighted works (including the right to exploit the copyrighted works for subsidiary purposes and in different media and by future methods of exploitation) and all causes of action related to the Intellectual Property;
(g) all policies and procedures, methods of delivery of services, trade secrets, disks, drawings and specifications, market studies, consultants’ reports, prototypes, and all similar property of any nature, tangible or intangible, owned by Seller and used in connection with the Business, including, but not limited to, any files, notices or documents related to Better Business Bureau offices, Attorney General’s or other state or federal agencies related to customer complaints; *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commissionname "Global Media.
(h) all goodwill incident to the Business, to the extent assignable by Seller, including, but not limited to, the value of the name(s) associated with the Business, including, but not limited to, “VMC”, “VMC Satellite”, “XXXXxxxxxxxx.xxx,” “Xxxxxxxxx.xxx,” “XxxxxxXxxxxxXxxxxxxXxxxxxxXXX.xxx” and “X-X-X-X.xxx” or any derivative thereof (the rights to which shall be assigned to Buyer as a condition to Closing), and the value of good customer relations;
(i) all computers, equipment, Software, automation systems, accounting systems, source codes and master disks of source codes, and other proprietary information owned or licensed, whether for general business usage (e.g., accounting, word processing, graphics, spreadsheet analysis, etc.), or specific, unique-to-the-business usage, owned by, or licensed to, Seller and used in the operation of the Business as set forth on Schedule 2.1(i);
(j) all prepaid expenses, deposits, claims for refunds and rights to offset associated with the Business or the Acquired Assets other than those associated with the Retained Liabilities and as set forth in Section 2.2(f);
(k) except as set forth on Schedule 2.1(k), all other intangible assets (including all claims, contract rights and warranty and product liability claims against third parties) relating to the Acquired Assets or the Business;
(l) all insurance benefits, including rights and proceeds, arising from or relating to the Acquired Assets prior to the Closing;
(m) except as set forth on Schedule 2.2, all rights, claims, credits, causes of action or rights of set-off of Seller against third parties relating to the Business or the Acquired Assets, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent;
(n) the excess inventory for the *** rebate certificates (“Rebate Certificates”) as specifically set forth on Schedule 2.1(n) (the “Excess Inventory”); and
(o) all of the SERS Assets. This Agreement shall not constitute an agreement or attempted agreement to transfer, sublease, sublicense or assign any privilege, right or interest in any written or oral license, agreement, commitment, contract or understanding (a “Contract”) or Permit or any claim, right or benefit arising thereunder or resulting therefrom, if an attempted assignment thereof without the consent required or necessary of a third party would constitute a breach or violation thereof or affect adversely the rights of Seller or Buyer thereunder. If a consent of a third party which is required in order to assign any interest is not obtained prior to the Closing Date, or if an attempted assignment would be ineffective or would adversely affect the ability of Seller to convey its interest to Buyer, Seller shall cooperate with Buyer in any lawful arrangement to provide that Buyer shall receive Seller’s entire interest in the benefits under any such Contract or Permit, including, without limitation, enforcement for the benefit of Buyer of *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. any and all rights of Seller against any other party thereto arising out of the breach or cancellation thereof by such party or otherwise; provided, however, that nothing contained in this paragraph shall affect the liability, if any, of Seller or recourse of Buyer at law or in equity, or as provided in this Agreement, for failing to have disclosed the need for such consent or approval. Notwithstanding the foregoing, the transfer of the Acquired Assets pursuant to this Agreement shall not include the assumption of any Liability or Encumbrance in respect thereof."
Appears in 1 contract
The Purchase and Sale of Assets. Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, covenants and agreements of Seller contained herein, at the Closing, Seller shall sell, convey, transfer, assign and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller, free and clear of all Liabilities and EncumbrancesEncumbrances (excluding only those Assumed Liabilities that are specifically listed on Schedule 2.3), all of the assets, properties, rights, interests, claims and goodwill of Seller, tangible and intangible, of every kind and description, used, held for use or usable in the Business, as the same shall exist as of the Closing Date (including without limitation the assets acquired by Seller from SERS pursuant to the SERS Assignment and Xxxx of Sale, which assets represent all of the SERS assets necessary and currently used in SERS’ business (including any and all Intellectual Property of SERS) (the “SERS Assets”))Date, other than the Excluded Assets (collectively, the “Acquired Assets”). The Acquired Assets shall include, without limitation:
(a) all tangible personal property used in connection with the Business (which individually or in the aggregate have a value of Two Hundred Fifty Dollars ($250.00) or greater) Business, including, without limitation, the tangible property set forth on Schedule 2.1(a); *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission.;
(b) all tangible personal property used in connection with the Business;
(c) all inventory of Seller (except as set forth on Schedule 2.2(m)), including all materials and supplies, all work in process and all finished products and supplies owned and/or used in connection with the Business as set forth in Schedule 2.1(b2.1(c);
(cd) all Accounts Receivable relating to the Business as of April 1, 2003 and all additional Accounts Receivable listed on Schedule 2.1(d);
(e) all rights of Seller under contracts and leases relating to the Business listed on Schedule 2.1(c2.1(e) , which are all of the contracts necessary to operate the Business as presently conducted (the “Assigned Contracts”);
(df) all revenue of Seller, recognized in accordance with GAAP, from April 1, 2003 to the Closing Date;
(g) all Permits relating to the acquisition or ownership of the Acquired Assets or the operation of the Business;
(eh) all data, records, files, manuals, blueprints and other documentation related to the Acquired Assets and the operation of the Business including (i) service and warranty records; (ii) sales support and promotion materials, creative materials, art work, photographs, public relations and advertising material, studies, reports, shipping materials, office supplies and materials, sales and marketing files, correspondence and other similar documents and records used in the Business, whether in electronic form or otherwise; (iii) all client, customer and supplier lists and order informationlists, telephone numbers and electronic mail addresses and the other information with respect to past, present or prospective clients, customers and suppliers; and (iv) accounting records, cost and pricing information, all sales and credit records, catalogs and brochures relating to the Business, purchasing records and records relating to suppliers;.
(fi) all transferable Intellectual Property owned or used by Seller and assignable Third Party Licenses presently held by Seller in connection with the Acquired Assets or the Business as set forth on in Schedule 2.1(f2.1(i), including all goodwill associated with the trademarks, service marks, marks and trade names, all URLs (whether owned, licensed, leased or used in the Business), including, but not limited to, those listed in Schedule 2.1(f), all key word advertising rights granted by the trademarks, service marks, trade names, and URLs (regardless of the search engine marketing company associated with such advertising), object codes and source codes (including all copies thereof and related documentation), subject to Section 2.2(m), the right to xxx and collect for past, present or future past infringement of the Intellectual Property, the right to create derivative works for any copyrighted works (including the right to exploit the copyrighted works for subsidiary purposes and in different media and by future methods of exploitation) and all causes of action related to the Intellectual Property;
(gj) all policies and procedures, methods of delivery of services, trade secrets, disks, drawings and specifications, market studies, consultants’ reports, prototypes, and all similar property of any nature, tangible or intangible, owned by Seller and used in connection with the Business, including, but not limited to, any files, notices or documents related to Better Business Bureau offices, Attorney General’s or other state or federal agencies related to customer complaints; *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission.;
(hk) all goodwill incident to the Business, to the extent assignable by Seller, including, but not limited to, the value of the name(s) associated with the Business, including, but not limited to, “VMC”, “VMC Satellite”, “XXXXxxxxxxxx.xxx,” “Xxxxxxxxx.xxx,” “XxxxxxXxxxxxXxxxxxxXxxxxxxXXX.xxx” and “X-X-X-X.xxx” or any derivative thereof (the rights to which shall be assigned to Buyer as a condition to Closing), Business and the value of good customer relations;
(il) all computers, equipment, Software, automation systems, accounting systems, source codes and master disks of source codes, and other proprietary information owned or licensed, whether for general business usage (e.g., accounting, word processing, graphics, spreadsheet analysis, etc.), or specific, unique-to-the-business usage, owned by, or licensed to, Seller and used in the operation of the Business as set forth on in Schedule 2.1(i2.1(l);
(jm) all prepaid expenses, deposits, claims for refunds expenses and rights to offset security deposits associated with the Business or the Acquired Assets other than those associated with the Retained Liabilities and as set forth in Section 2.2(f)Unassumed Liabilities;
(kn) except as set forth on Schedule 2.1(k), all the Available Cash;
(o) all other intangible assets (including all claims, contract rights and warranty and product liability claims against third parties) relating to the Acquired Assets or the Business;
(lp) all insurance benefits, including rights and proceeds, arising from or relating to the Acquired Assets or the Assumed Liabilities prior to the Closing;, unless expended in accordance with this Agreement; and
(mq) except as set forth on Schedule 2.2, all rights, claims, credits, causes of action or rights of set-off claims of Seller against third parties relating to the Business or the Acquired Assets, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent;
(n) the excess inventory for the *** rebate certificates (“Rebate Certificates”) as specifically set forth on Schedule 2.1(n) (the “Excess Inventory”); and
(o) all of the SERS Assets. This Agreement shall not constitute an agreement or attempted agreement to transfer, sublease, sublicense or assign any privilege, right or interest in any written or oral license, agreement, commitment, contract or understanding (a “Contract”) or Permit or any claim, right or benefit arising thereunder or resulting therefrom, if an attempted assignment thereof without the consent required or necessary of a third party would constitute a breach or violation thereof or affect adversely the rights of Seller or Buyer thereunder. If a consent of a third party which is required in order to assign any interest is not obtained prior to the Closing Date, or if an attempted assignment would be ineffective or would adversely affect the ability of Seller to convey its interest to Buyer, Seller shall cooperate with Buyer in any lawful arrangement to provide that Buyer shall receive Seller’s entire interest in the benefits under any such Contract or Permit, including, without limitation, enforcement for the benefit of Buyer of *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. any and all rights of Seller against any other party thereto arising out of the breach or cancellation thereof by such party or otherwise; provided, however, that nothing contained in this paragraph shall affect the liability, if any, of Seller or recourse of Buyer at law or in equity, or as provided in pursuant to this Agreement, Agreement for failing to have disclosed the need for such consent or approval. Notwithstanding the foregoing, the transfer of the Acquired Assets pursuant to this Agreement shall not include the assumption of any Liability or Encumbrance in respect thereof, unless expressly assumed by Buyer pursuant to Section 2.3.
Appears in 1 contract
The Purchase and Sale of Assets. Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, covenants and agreements of Seller contained herein, at the Closing, Seller shall sell, convey, transfer, assign and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller, free and clear of all Liabilities and Encumbrances, all of the assets, properties, rights, interests, claims and goodwill of Seller, tangible and intangible, of every kind and description, used, held for use or usable in the Businesslisted under (a) through (l) below, as the same shall exist as of the Closing Date (including without limitation the assets acquired by Seller from SERS pursuant to the SERS Assignment and Xxxx of Sale, which assets represent all of the SERS assets necessary and currently used in SERS’ business (including any and all Intellectual Property of SERS) (the “SERS Assets”)), other than the Excluded Assets (collectively, the “Acquired Assets”). The Acquired Assets shall include, without limitation:
(a) all tangible personal property used in connection with the Business (which individually or in the aggregate have a value of Two Hundred Fifty Dollars ($250.00) or greater) including, without limitation, the tangible property set forth on Schedule 2.1(a); : *** *Confidential Information has been omitted and filed separately with the Securities and Exchange Commission.
(ba) all inventory of Seller (except as tangible personal property set forth on Schedule 2.2(m2.1(a)), including ;
(b) all materials and supplies, all work in process and all finished products and supplies owned and/or and used in connection with the Business Acquired Assets as set forth in Schedule 2.1(b);
(c) all rights of Seller under contracts and leases relating to the Business listed on Schedule 2.1(c) , which are all of the contracts necessary to operate the Business as presently conducted (the “Assigned Contracts”);
(d) all Permits relating to the acquisition or ownership of the Acquired Assets or the operation of the BusinessAssets;
(ed) all data, records, files, manuals, blueprints and other documentation related to the Acquired Assets and the operation of the Business including (i) service and warranty records; (ii) sales support and promotion materials, creative materials, art work, photographs, public relations and advertising material, studies, reports, shipping materials, office supplies and materials, sales and marketing files, correspondence and other similar documents and records used in the Business, whether in electronic form or otherwise; (iii) all client, customer and supplier lists and order information, telephone numbers and electronic mail addresses and the other information with respect to past, present or prospective clients, customers and suppliers; and (iv) accounting records, cost and pricing information, sales and credit records, catalogs and brochures relating to the Business, purchasing records and records relating to suppliersAssets;
(fe) all transferable Intellectual Property owned or used by Seller and assignable Third Party Licenses presently held by Seller in connection with the Acquired Assets or the Business as set forth on Schedule 2.1(f2.1(e), including all goodwill value associated with the trademarks, service marks, trade names, all URLs (whether owned, licensed, leased licensed or used in the Businessleased), including, but not limited to, those listed in Schedule 2.1(f), all key word advertising rights granted by the trademarks, service marks, trade names, and URLs (regardless of the search engine marketing company associated with such advertising2.1(e), object codes and source codes (including all copies thereof and related documentation), subject to Section 2.2(m), the right to xxx and collect for past, present or future past infringement of the Intellectual Property, the right to create derivative works for any copyrighted works (including the right to exploit the copyrighted works for subsidiary purposes and in different media and by future methods of exploitation) and all causes of action related to the Intellectual Property;
(gf) all policies and procedures, methods of delivery of services, trade secrets, disks, drawings and specifications, market studies, consultants’ reports, prototypes, and all similar property of any nature, tangible or intangible, owned by Seller and used in connection with the BusinessAcquired Assets, including, but not limited to, any files, notices or documents related to Better Business Bureau offices, Attorney General’s or other state or of federal agencies related to customer complaints; *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission.;
(hg) all goodwill intangible value incident to the Business, to the extent assignable by SellerAcquired Assets, including, but not limited to, the value of the name(s) associated with the Business, including, but not limited to, “VMC”, “VMC Satellite”, “XXXXxxxxxxxx.xxx,” “Xxxxxxxxx.xxx,” “XxxxxxXxxxxxXxxxxxxXxxxxxxXXX.xxx” and “X-X-X-X.xxx” or any derivative thereof (the rights to which shall be assigned to Buyer as a condition to Closing), Acquired Assets and the value of good customer relations;
(ih) all computers, equipment, Software, automation systems, accounting systems, source codes and master disks of source codes, and other proprietary information owned or licensed, whether for general business usage (e.g., accounting, word processing, graphics, spreadsheet analysis, etc.), or specific, unique-to-the-business usage, owned by, or licensed to, Seller and used in the operation of the Business as set forth on Schedule 2.1(i);
(j) all prepaid expenses, deposits, claims for refunds and rights to offset associated with the Business or the Acquired Assets other than those associated with Excluded Assets and the Retained Liabilities and as set forth in Section 2.2(f)Liabilities;
(ki) except as set forth on Schedule 2.1(k), all other intangible assets (including all claims, contract rights and warranty and product liability claims against third parties) relating to the Acquired Assets or the BusinessAssets;
(lj) all insurance benefits, including rights and proceeds, arising from or relating to the Acquired Assets prior to the Closing;; and
(mk) except as set forth on Schedule 2.2, all rights, claims, credits, causes of action or rights of set-off of Seller against third parties relating to the Business or the Acquired Assets, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent;
(n) the excess inventory for the . *** rebate certificates (“Rebate Certificates”) as specifically set forth on Schedule 2.1(n) (*Confidential Information has been omitted and filed separately with the “Excess Inventory”); and
(o) all of the SERS AssetsSecurities and Exchange Commission. This Agreement shall not constitute an agreement or attempted agreement to transfer, sublease, sublicense or assign any privilege, right or interest in any written or oral license, agreement, commitment, contract or understanding (a “Contract”) or Permit or any claim, right or benefit arising thereunder or resulting therefrom, if an attempted assignment thereof without the consent required or necessary of a third party would constitute a breach or violation thereof or affect adversely the rights of Seller or Buyer thereunder. If a consent of a third party which is required in order to assign any interest is not obtained prior to the Closing Date, or if an attempted assignment would be ineffective or would adversely affect the ability of Seller to convey its interest to Buyer, Seller shall cooperate with Buyer in any lawful arrangement to provide that Buyer shall receive Seller’s entire interest in the benefits under any such Contract or Permit, including, without limitation, enforcement for the benefit of Buyer of *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. any and all rights of Seller against any other party thereto arising out of the breach or cancellation thereof by such party or otherwise; provided, however, that nothing contained in this paragraph shall affect the liability, if any, of Seller or recourse of Buyer at law or in equity, equity or as provided in this Agreement, Agreement for failing to have disclosed the need for such consent or approval. Notwithstanding the foregoing, the transfer of the Acquired Assets pursuant to this Agreement shall not include the assumption of any Liability or Encumbrance in respect thereof.
Appears in 1 contract
The Purchase and Sale of Assets. Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, covenants and agreements of Seller contained herein, at the Closing, Seller shall sell, convey, transfer, assign and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller, free and clear of all Liabilities and Encumbrances (excluding only those Assumed Liabilities that are specifically listed on Schedule 2.3 and Permitted Encumbrances), all of the assets, properties, rights, interests, claims and goodwill of Seller, tangible and intangible, of every kind and description, used, held for use or usable in the Business, as the same shall exist as of the Closing Date (including without limitation the assets acquired by Seller from SERS pursuant to the SERS Assignment and Xxxx of Sale, which assets represent all of the SERS assets necessary and currently used in SERS’ business (including any and all Intellectual Property of SERS) (the “SERS Assets”))Date, other than the Excluded Assets (collectively, the “Acquired Assets”). The Acquired Assets shall include, without limitation:
(a) all tangible personal property used in connection with the Business (which individually or in that are necessary to conduct the aggregate have a value of Two Hundred Fifty Dollars ($250.00) or greater) including, without limitation, the tangible property Business and are set forth on Schedule 2.1(a); *** *Confidential Information Treatment has been omitted and requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) all inventory of Seller (except as set forth on Schedule 2.2(m))inventory, including all materials and supplies, all work in process (including, Activation orders with the Buyer or its Affiliate’s identification codes, but excluding codes relating to the Seller as provided in Section 2.2 (q)) and all finished products and supplies owned and/or and used in connection with the Business as set forth in Schedule 2.1(b);
(c) all rights of Seller under contracts and leases relating to the Business listed on Schedule 2.1(c) , which are all of the contracts necessary to operate the Business as presently conducted (the “Assigned Contracts”)) and those certain Customer Consents in substantially the form attached hereto as Exhibit E;
(d) all material Permits relating to the acquisition or ownership of the Acquired Assets or the operation of the Business;
(e) all data, records, files, manuals, blueprints and other documentation related to the Acquired Assets and the operation of the Business including (i) service and warranty records; (ii) sales support and promotion materials, creative materials, art work, photographs, public relations and advertising material, studies, reports, shipping materials, office supplies and materials, sales and marketing files, files correspondence and other similar documents and records used in the Business, whether in electronic form or otherwise; (iii) all client, customer and supplier lists and order information, including, without limitation, Seller’s Google Overture account/records and premium pricing and the customer order information stored on Seller’s local network, telephone numbers and electronic mail addresses and the other information with respect to past, present or prospective clients, customers and suppliers; and (iv) accounting records, cost and pricing information, sales and credit records, catalogs and brochures relating to the Business, purchasing records and records relating to suppliers;
(f) all transferable Intellectual Property owned or used by Seller and assignable Third Party Licenses presently held by Seller in connection with the Acquired Assets or the Business as set forth on Schedule 2.1(f), including all goodwill associated with the trademarks, service marksall URLs, trade namesincluding, without limitation, “A1 Wxxxxxxx.xxx,” “Axxxx.xxx” and “1xxxxxxxxx.xxx”, all URLs key word bidding rights on or with respect to any search engine marketing companies (whether owned, licensed, leased or used in the Business), including, but not limited to, those listed in Schedule 2.1(fGoogle, Overture, FindWhat and Mxxx.xxx), all key word advertising rights granted by the trademarks, service marks, trade names, and URLs (regardless of the search engine marketing company associated with such advertising), object codes and source codes (including all copies thereof and related documentation), subject to Section 2.2(m)codes, the right to xxx sxx and collect for past, present or future past infringement of the Intellectual Property, the right to create derivative works for any copyrighted works (including the right to exploit the copyrighted works for subsidiary purposes and in different media and by future methods of exploitation) and all causes of action related to the Intellectual Property;
(g) all policies and procedures, methods of delivery of services, trade secrets, disks, drawings and specifications, market studies, consultants’ reports, prototypes, and all similar property of any nature, tangible or intangible, owned by Seller and used in connection with the Business, including, but not limited to, any files, notices or documents related to Better Business Bureau offices, Attorney General’s or other state or of federal agencies related to customer complaints; *** *Confidential Information Treatment has been omitted and requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(h) all goodwill incident to the Business, to the extent assignable by Seller, including, but not limited to, the value of the name(s) associated with the Business, including, but not limited to, “VMC”, “VMC Satellite”, “XXXXxxxxxxxx.xxx,” “Xxxxxxxxx.xxx,” “XxxxxxXxxxxxXxxxxxxXxxxxxxXXX.xxx” and “X-X-X-X.xxx” or any derivative thereof (the rights to which shall be assigned to Buyer as a condition to Closing), Business and the value of good customer relations;
(i) all computers, equipment, Software, automation systems, accounting systems, source codes and master disks of source codes, and other proprietary information owned or licensed, whether for general business usage (e.g., accounting, word processing, graphics, spreadsheet analysis, etc.), or specific, unique-to-the-business usage, owned by, or licensed to, Seller and used in the operation of the Business as set forth on Schedule 2.1(i);
(j) all prepaid expenses, deposits, claims for refunds and rights to offset associated with the Business or the Acquired Assets other than those associated with the Retained Liabilities and as set forth in Section 2.2(f);
(k) except as set forth on Schedule 2.1(k), all other intangible assets (including all claims, contract rights and warranty and product liability claims against third parties) relating to the Acquired Assets or the BusinessBusiness arising from events that occur after the Closing Date;
(lk) all insurance benefits, including rights and proceeds, arising from or relating to the Acquired Assets prior to or the Closing;Assumed Liabilities arising from events that occur after the Closing Date; and
(ml) except as set forth on Schedule 2.2, all rights, claims, credits, causes of action or rights of set-off of Seller against third parties relating to the Business or the Acquired Assets, whether xxxxxx cxxxxx or inchoate, known or unknown, contingent or non-contingent;
(n) contingent arising from events that occur after the excess inventory for the *** rebate certificates (“Rebate Certificates”) Closing Date, except all rights, claims, credits, causes of action or rights of set-off of Seller related to Intellectual Property as specifically set forth on Schedule 2.1(n) (the “Excess Inventory”provided in Section 2.1(f); and
(o) all of the SERS Assets. This Agreement shall not constitute an agreement or attempted agreement to transfer, sublease, sublicense or assign any privilege, right or interest in any written or oral license, agreement, commitment, contract or understanding (a “Contract”) or Permit or any claim, right or benefit arising thereunder or resulting therefrom, if an attempted assignment thereof without the consent required or necessary of a third party would constitute a breach or violation thereof or affect adversely the rights of Seller or Buyer thereunder. If a consent of a third party which is required in order to assign any interest is not obtained prior to the Closing Date, or if an attempted assignment would be ineffective or would adversely affect the ability of Seller to convey its interest to Buyer, Seller shall reasonably and in good faith cooperate with Buyer in any lawful arrangement to provide that Buyer shall receive Seller’s entire interest in the benefits under any such Contract or Permit, including, without limitation, enforcement for the benefit of Buyer of *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission. any and all rights of Seller against any other party thereto arising out of the breach or cancellation thereof by such party or otherwise; provided, however, that nothing contained in this paragraph shall affect the liability, if any, of Seller or recourse of Buyer at law or in equity, equity or as provided in this Agreement, Agreement for failing to have disclosed the need for such consent or approval, unless such consent, alone or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Notwithstanding the foregoing, the transfer of the Acquired Assets pursuant to this Agreement shall not include the assumption of any Liability or Encumbrance in respect thereof, unless expressly assumed by Buyer pursuant to Section 2.3. ***Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission. From the Effective Date to the Closing Date, Buyer will have the right to remove any Assumed Asset listed by Seller in the Seller Disclosure Schedules (becoming an Excluded Asset) and the corresponding Liability to such asset will no longer be an Assumed Liability of Buyer (becoming a Retained Liability), except in the case of an Acquired Asset that is necessary to process Activations after the Effective Date.
Appears in 1 contract
The Purchase and Sale of Assets. Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, covenants and agreements of Seller contained herein, at the Closing, Seller Purchaser shall purchase and accept from Sellers, and Sellers shall sell, conveyassign, transfer, assign convey and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller, free and clear of all Liabilities and EncumbrancesPurchaser, all of the assets, properties, Sellers' respective rights, interests, claims title and goodwill interest in all assets of Seller, tangible and intangible, of every kind and description, used, held for use or usable in the Business, as the same shall exist as of the Closing Date (including without limitation the assets acquired by Seller from SERS pursuant to the SERS Assignment and Xxxx of Sale, which assets represent all of the SERS assets necessary and currently used in SERS’ business (including any and all Intellectual Property of SERS) Sellers (the “SERS "Assets”)), other than the Excluded Assets (collectively, the “Acquired Assets”). The Acquired Assets shall include, without limitation:
(a) all tangible personal property used in connection with the Business (which individually or in the aggregate have a value of Two Hundred Fifty Dollars ($250.00) or greater) including, without limitation, the tangible property set forth on Schedule 2.1(a); *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission.
(b) all inventory of Seller (except as set forth on Schedule 2.2(m)"), including all materials the following:
2.1 Sellers' accounts receivables, security deposits, and supplies, all work in process and all finished products and supplies owned and/or used in connection with the Business as set forth in Schedule 2.1(b)prepayments;
(c) all rights of 2.2 The contracts between any Seller under contracts and leases relating to the Business producers, advertisers, employees, and independent contractors listed on Schedule 2.1(c) , which are all of the contracts necessary to operate the Business as presently conducted (the “Assigned Contracts”)2.2;
(d) all Permits relating to the acquisition or ownership 2.3 All cash and bank accounts of the Acquired Assets or the operation of the Businesseach Seller;
(e) all data, records, files, manuals, blueprints 2.4 All of Sellers' furniture and other documentation related to fixtures located at the Acquired Assets Facilities and the operation of the Business including (i) service and warranty records; (ii) sales support and promotion materials, creative materials, art work, photographs, public relations and advertising material, studies, reports, shipping materials, office supplies and materials, sales and marketing files, correspondence and other similar documents and records used in the Business, whether in electronic form or otherwise; (iii) all client, customer and supplier lists and order information, telephone numbers and electronic mail addresses and the other information with respect to past, present or prospective clients, customers and suppliers; and (iv) accounting records, cost and pricing information, sales and credit records, catalogs and brochures relating to the Business, purchasing records and records relating to supplierslisted on Schedule 2.4;
(f) all transferable Intellectual Property owned or used by Seller 2.5 All of Sellers' computers, printers, software and assignable Third Party Licenses presently held by Seller in connection with the Acquired Assets or the Business as set forth communications equipment listed on Schedule 2.1(f), including all goodwill associated with the trademarks, service marks, trade names, all URLs (whether owned, licensed, leased or used in the Business), including, but not limited to, those listed in Schedule 2.1(f), all key word advertising rights granted by the trademarks, service marks, trade names, and URLs (regardless of the search engine marketing company associated with such advertising), object codes and source codes (including all copies thereof and related documentation), subject to Section 2.2(m), the right to xxx and collect for past, present or future infringement of the Intellectual Property, the right to create derivative works for any copyrighted works (including the right to exploit the copyrighted works for subsidiary purposes and in different media and by future methods of exploitation) and all causes of action related to the Intellectual Property2.5;
(g) all policies 2.6 The office leases and procedures, methods of delivery of services, trade secrets, disks, drawings and specifications, market studies, consultants’ reports, prototypes, and all similar phone systems listed on Schedule 2.6;
2.7 All intellectual property of any nature, tangible or intangible, owned by Seller and used in connection with the Business, including, but not limited to, any files, notices or documents related to Better Business Bureau offices, Attorney General’s or other state or federal agencies related to customer complaints; *** Confidential Information has been omitted and filed separately with the Securities and Exchange Commission.
(h) all goodwill incident to the Business, to the extent assignable by Seller, including, but not limited to, the value of the name(s) associated with the Business, including, but not limited to, “VMC”, “VMC Satellite”, “XXXXxxxxxxxx.xxx,” “Xxxxxxxxx.xxx,” “XxxxxxXxxxxxXxxxxxxXxxxxxxXXX.xxx” and “X-X-X-X.xxx” or any derivative thereof (the rights to which shall be assigned to Buyer as a condition to Closing), and the value of good customer relations;
(i) all computers, equipment, Software, automation systems, accounting systems, source codes and master disks of source codes, and other proprietary information owned or licensed, whether for general business usage (e.g., accounting, word processing, graphics, spreadsheet analysis, etc.), or specific, unique-to-the-business usage, owned by, or licensed to, Seller and used in the operation of the Business as set forth on Schedule 2.1(i);
(j) all prepaid expenses, deposits, claims for refunds and rights to offset Sellers that is associated with the Business or the Acquired Assets other than those associated with the Retained Liabilities and as set forth in Section 2.2(f);
(k) except as set forth on Schedule 2.1(k)of Sellers, all other intangible assets (including all claimsof Sellers' right, contract rights title and warranty interest in and product liability claims against third parties) relating to Sellers' logo, the Acquired Assets name "Dial" or the Business;
(l) all insurance benefits, including rights and proceeds, arising from or relating to the Acquired Assets prior to the Closing;
(m) except as set forth on Schedule 2.2, all rights, claims, credits, causes of action or rights of set-off of Seller against third parties relating to the Business or the Acquired Assets, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent;
(n) the excess inventory for the *** rebate certificates (“Rebate Certificates”) as specifically set forth on Schedule 2.1(n) (the “Excess Inventory”)any trademark owned by Sellers; and
(o) all 2.8 All of the SERS capital stock of any Person owned beneficially or of record by any Seller listed on Schedule 2.8. Notwithstanding the foregoing, in no event is Purchaser purchasing and accepting from Sellers, nor are Sellers selling, assigning, transferring, conveying or delivering, the Excluded Assets. This Anything contained herein to the contrary notwithstanding, this Agreement shall will not constitute an agreement or attempted agreement to transferassignment, sublease, sublicense or assign any privilege, right or interest in any written or oral license, agreement, commitment, contract or understanding (a “Contract”) or Permit or any claim, right or benefit arising thereunder or resulting therefrom, if an attempted assignment thereof or an agreement to assign any of the Assets if an assignment or attempted assignment of the same without the consent required of any other party or necessary of a third party parties thereto would constitute a breach or violation thereof or affect adversely in any way impair the rights of Seller Sellers or Buyer Purchaser thereunder. If a consent of a third party which is required Each Seller will use its commercially reasonable efforts (at such Seller's expense), and Purchaser will cooperate in order all reasonable respects with such Seller to assign any interest is not obtained obtain prior to the Closing DateDate all consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Newco the Assets. If any such consent is not obtained or if an attempted assignment would be ineffective or would adversely affect the ability of Seller to convey its interest to Buyer, Seller shall cooperate with Buyer in any lawful arrangement to provide that Buyer shall receive impair such Seller’s entire interest in the benefits 's or Newco's rights under any such Contract Asset so that Newco would not receive all such rights, then (1) such Seller will (x) ensure that the full benefits of any such Asset are provided or Permitcaused to be provided to Newco, includingand (y) pay promptly or cause to be paid promptly to Newco when received all monies and other properties received by such Seller with respect to any Asset of which Newco would have been entitled to receive such monies and other properties if such consent had been obtained; and (2) in consideration of Sellers providing or causing to be provided to Newco the full benefits thereof, without limitation, enforcement for the benefit Newco will perform and discharge on behalf of Buyer such Seller all of *** Confidential Information has been omitted and filed separately such Seller's Liabilities thereunder which are Assumed Liabilities in accordance with the Securities provisions thereof. In addition, such Seller will take such other actions (at such Seller's expense) as may reasonably be requested by Purchaser in order to place Newco, insofar as reasonably possible, in the same position as if such Asset had been transferred as contemplated hereby and Exchange Commission. so that all the benefits relating thereto, including possession, use, potential for gain and dominion, control and command, shall inure to Newco, subject to the assumption by Newco of any and all rights of Seller against any other party thereto arising out of the breach or cancellation thereof by Assumed Liabilities with respect to such party or otherwise; provided, however, that nothing contained in this paragraph shall affect the liability, if any, of Seller or recourse of Buyer at law or in equity, or as provided in this Agreement, for failing to have disclosed the need for such consent or approvalAsset. Notwithstanding the foregoing, if any such consent is not obtained prior to the Closing Date, such Seller will continue to use its commercially reasonable efforts (at such Seller's expense) to obtain all such consents (and, if and when such consents are obtained, the transfer of the Acquired Assets pursuant to applicable Asset will be effected in accordance with the terms of this Agreement shall not include the assumption of any Liability or Encumbrance in respect thereofAgreement).
Appears in 1 contract
