Title to Assets; Sufficiency of Assets. (a) The Seller has, and at the Closing the Seller will deliver to Acquiror, good and valid title to or, in the case of licensed assets, a valid and binding license to the Purchased Assets free and clear of all Encumbrances, a valid and binding license under the Seller Multi-Application Technology pursuant to Section 2.5 and, as applicable, a valid and binding sublicense under the Licensed Intellectual Property (as defined in the Acrux License) pursuant to the Sublicense Agreement. Except as set forth on Schedule 6.14(a) of the Seller Disclosure Schedule, no Subsidiary of the Seller owns, beneficially or of record, or has any rights, title or interest in, to or under any Purchased Asset or conducts any part of the Evamist Business, and there are no employees of any Subsidiary of the Seller employed in the Evamist Business or who perform tasks that are necessary for the proper operation of the Evamist Business. (b) The Purchased Assets (together with the rights of the Acquiror and its Affiliates under the Related Agreements), the rights granted pursuant to Section 2.5 and, as applicable, pursuant to the Sublicense Agreement constitute all of the assets, Contracts, Required Permits, rights and services required for the continued operation of the Evamist Business by the Acquiror as conducted by the Seller during the past twelve (12) months. (c) Each item of equipment which is a Purchased Asset (other than equipment set forth on Schedule 6.14(c) of the Seller Disclosure Schedule) is in good operating condition for the purposes for which it is currently being used, subject to ordinary wear and tear, is free from any material defect and has been maintained in all material respects in accordance with generally accepted industry practice. (d) The Seller has not experienced any out-of-stock or back-order situation with respect to the Evamist Business (e) The Seller does not own or control any Evamist Product Improvements, and has not granted to any third party or enabled any third party to make any Evamist Product Improvements.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Vivus Inc), Asset Purchase Agreement (Vivus Inc), Asset Purchase Agreement (Kv Pharmaceutical Co /De/)
Title to Assets; Sufficiency of Assets. (a) The Seller hasExcept as would not, and at individually or in the Closing aggregate, reasonably be expected to have a Material Adverse Effect, the Seller will deliver to Acquiror, Sellers have good and valid title to to, or, in the case of licensed assetsleased or subleased Acquired Assets, a valid and binding license to the Purchased Assets subsisting leasehold interests in, all Acquired Assets, free and clear of all Encumbrances (other than Permitted Encumbrances). Pursuant to the Sale Order, a valid the Sellers will convey such title to or rights to use, all of the Acquired Assets, free and binding license under the Seller Multi-Application Technology pursuant to Section 2.5 andclear of all Encumbrances (other than Permitted Encumbrances).
(b) Except as would not, as applicable, a valid and binding sublicense under the Licensed Intellectual Property (as defined individually or in the Acrux License) pursuant aggregate, reasonably be expected to the Sublicense Agreement. Except have a Material Adverse Effect or as set forth on Schedule 6.14(a) 3.4(b), all tangible assets of the Seller Disclosure ScheduleAcquired Assets and the Acquired Businesses are (i) in good working order and condition in all material respects, no Subsidiary ordinary wear and tear excepted, (ii) have been reasonably maintained, (iii) are suitable in all material respects for the uses for which they are being utilized in the Acquired Assets and the Acquired Businesses as conducted by Sellers as of the Seller ownsdate hereof, beneficially or of record, or has any rights, title or interest in, to or under any Purchased Asset or conducts any part of the Evamist Business, and there are no employees of any Subsidiary of the Seller employed (iv) do not require more than regularly scheduled maintenance in the Evamist Business or who perform tasks that are necessary for Ordinary Course consistent with past practice and the proper operation established maintenance policies of the Evamist Business.
(b) The Purchased Assets (together with the rights of the Acquiror and its Affiliates under the Related Agreements), the rights granted pursuant to Section 2.5 andSellers, as applicable, pursuant in order to the Sublicense Agreement constitute all of the assets, Contracts, Required Permits, rights and services required for the continued operation of the Evamist Business by the Acquiror as conducted by the Seller during the past twelve (12) months.
(c) Each item of equipment which is a Purchased Asset (other than equipment set forth on Schedule 6.14(c) of the Seller Disclosure Schedule) is keep them in good operating condition for the purposes for which it is currently being usedcondition, subject to ordinary wear and tear, is free from any material defect and has been maintained (v) comply in all material respects with all requirements under any Laws and any licenses which govern the use and operation thereof. Except as would not, individually or in accordance with generally accepted industry practice.
(d) The Seller has the aggregate, reasonably be expected to have a Material Adverse Effect, the Acquired Assets constitute the material properties, assets and rights reasonably necessary, and are sufficient in all material respects, for the conduct of the Acquired Assets and the Acquired Businesses as currently conducted, taking into account the fact that the Excluded Assets shall not experienced any out-of-stock or back-order situation with respect be acquired by Purchaser pursuant to the Evamist Business
(e) The Seller does not own or control any Evamist Product Improvements, and has not granted to any third party or enabled any third party to make any Evamist Product Improvementsterms of this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Complete Solaria, Inc.), Asset Purchase Agreement (Sunpower Corp)
Title to Assets; Sufficiency of Assets. (a) The Seller has, and at the Closing the Seller will deliver to Acquiror, has good and valid title to or, in the case of licensed assetsto, a valid and binding license to to, or a valid leasehold interest in, the Purchased Assets Acquired Assets, free and clear of all Encumbrancesany Liens. Upon the sale, conveyance, transfer, assignment and delivery of the Acquired Assets in accordance with this Agreement, the Buyers will acquire good and valid title to, a valid and binding license under the Seller Multi-Application Technology pursuant to Section 2.5 andto, as applicable, or a valid and binding sublicense under the Licensed Intellectual Property (as defined in the Acrux License) pursuant to the Sublicense Agreement. Except as set forth on Schedule 6.14(a) of the Seller Disclosure Schedule, no Subsidiary of the Seller owns, beneficially or of record, or has any rights, title or leasehold interest in, to or under any Purchased Asset or conducts any part of the Evamist BusinessAcquired Assets, free and there are no employees clear of any Subsidiary of the Seller employed in the Evamist Business or who perform tasks that are necessary for the proper operation of the Evamist BusinessLiens.
(b) The Purchased Assets Assuming Buyers (together with or one or more of their Affiliates) have the rights of ability to provide to the Acquiror Business all (i) facilities (including internet bandwidth and its Affiliates under furnishings) other than those provided pursuant to the Related Agreements)Transition Services Agreement during the term thereof, (ii) licenses for “off-the-shelf” or otherwise commercially available software, and (iii) executive, accounting/finance, marketing, legal, human resources, information technology and similar services currently provided to the Business by Seller, the Acquired Assets, the rights granted licensed to Buyers under the Software License Agreement (provided such agreement is renewed upon its expiration upon mutually agreeable terms for renewal period(s)) and the rights licensed to Buyers pursuant to Section 2.5 and9.11, as applicablecollectively are, pursuant when utilized by a labor force substantially similar to that employed by Seller in connection with the Business on the date hereof, adequate and sufficient (A) to conduct the Business immediately following the Closing in a manner consistent in all material respects with the manner in which it was conducted in the Ordinary Course of Business prior to the Sublicense Agreement constitute all of Closing Date and (B) to comply with the assets, Contracts, Required Permits, rights Buyers’ obligations under the Acquired Contracts and services required for the continued operation of the Evamist Business by the Acquiror as conducted by the Seller during the past twelve (12) monthsSubcontract Agreement.
(c) Each item The items of equipment which is a Purchased Asset tangible personal property included in the Acquired Assets (other than equipment set forth on Schedule 6.14(ci) of the Seller Disclosure Schedule) is are in good operating condition for the purposes for which it is currently being used, subject to and repair (ordinary wear and teartear excepted), is free from (ii) do not have any defects that would reasonably be expected to interfere in any material defect and has been maintained respect with their use in all material respects in accordance connection with generally accepted industry practice.
(d) The Seller has not experienced any out-of-stock or back-order situation with respect to the Evamist Business
(e) The Seller does not own or control any Evamist Product Improvements, and has not granted to any third party or enabled any third party to make any Evamist Product Improvements(iii) are suitable for the uses for which they are intended.
Appears in 2 contracts
Samples: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement (Ariba Inc)
Title to Assets; Sufficiency of Assets. (a) The Seller hasExcept for Permitted Encumbrances, the Owned Inventory and at the Closing Owned Equipment is owned beneficially by one or more of the Seller will deliver to AcquirorSellers, good and valid title to or, in the case of licensed assets, a valid and binding license to the Purchased Assets free and clear of all Liens, and such Sellers have good and marketable title thereto. Except for Permitted Encumbrances, a valid all tangible assets, including without limitation inventory, property and binding license under equipment that the Seller Multi-Application Technology pursuant Companies purport to Section 2.5 and, as applicable, a valid and binding sublicense under the Licensed Intellectual Property (as defined in the Acrux License) pursuant to the Sublicense Agreement. Except as set forth on Schedule 6.14(a) own is owned beneficially by one or more of the Seller Disclosure ScheduleCompanies, no Subsidiary free and clear of the Seller owns, beneficially or of record, or has any rights, title or interest in, to or under any Purchased Asset or conducts any part of the Evamist Businessall Liens, and there are no employees of any Subsidiary of the Seller employed in the Evamist Business or who perform tasks that are necessary for the proper operation of the Evamist Businesssuch Companies have good and marketable title thereto.
(b) The Purchased Assets (together with All tangible assets included in the rights of the Acquiror Owned Equipment and its Affiliates under the Related Agreements), the rights granted pursuant to Section 2.5 and, as applicable, pursuant to the Sublicense Agreement constitute all of the assets, Contracts, Required Permits, rights and services required for the continued operation of the Evamist Business tangible assets owned or leased by the Acquiror as conducted by the Seller during the past twelve (12) months.
(c) Each item of equipment which is a Purchased Asset (other than equipment set forth on Schedule 6.14(c) of the Seller Disclosure Schedule) is Companies are in good satisfactory operating condition for the purposes for uses to which it is currently they are being usedput, subject to ordinary wear and teartear and ordinary maintenance requirements, is free from any material defect and has been maintained except as would not reasonably be expected to have, individually or in all material respects in accordance with generally accepted industry practicethe aggregate, a Material Adverse Effect.
(dc) The As of the date hereof and assuming the assignment or novation of all Seller has not experienced any outContracts and all Non-of-stock or back-order situation with respect Assignable Contracts to the Evamist Purchaser or a Designated Purchaser, the assets and rights of the Companies, together with the Assets and the rights of, or to be acquired by, the Purchaser and/or the Designated Purchasers under this Agreement and the EMEA Asset Sale Agreement, together with the rights to be provided to the Purchaser and/or Designated Purchasers under the other Transaction Documents, considered together, include such assets, properties and rights of every type and description, whether real or personal (other than Intellectual Property, Overhead and Shared Services, non-exclusive supply contracts of the Business
, the services of those Employees that will not be considered Transferred Employees for purposes of this Agreement and any services currently being provided to the Business as of the Closing Date that the Purchaser elects not to receive or continue and other than the real estate assets of the Business that Purchaser has agreed or elects not to have transferred or subleased to it hereunder) as are necessary and sufficient to conduct the Business substantially in the manner conducted by the Sellers and the Companies as of the date hereof (e) The Seller does as such conduct may reasonably be modified as a result of the restructuring plan previously disclosed to the Purchaser), except where the absence of such assets or rights would not own reasonably be expected to have, individually or control any Evamist Product Improvementsin the aggregate, and has not granted to any third party or enabled any third party to make any Evamist Product Improvementsa Material Adverse Effect.
Appears in 2 contracts
Samples: Asset and Share Sale Agreement (Nortel Networks LTD), Asset and Share Sale Agreement
Title to Assets; Sufficiency of Assets. (a) The Each Seller hashas title to, or a valid leasehold interest in, all of the properties and at assets included in the Closing Circles Purchased Assets and in the Seller will deliver CVG Purchased Assets that it is conveying pursuant hereto. Subject to Acquirorentry of the Sale Order and upon the consummation of the transactions contemplated hereby and by the Transaction Documents, good and valid the Purchasers shall acquire title to or, in the case all of licensed assets, a valid and binding license to the Purchased Assets Assets, as set forth in Section 2.1, free and clear of all EncumbrancesLiens other than Permitted Liens. Except for the Excluded Assets set forth in Section 2.2(a) and Section 2.2(f), the Purchased Assets (taken as a valid whole) are sufficient for the continued conduct of the Business after the Closing in substantially the same manner as conducted as of the date hereof (subject to any Excluded Contracts that the Purchasers elect not to acquire as provided in Section 2.3(d)); provided that the Circles Purchased Assets are sufficient for the continued conduct and binding license under operations of the MVNE Business after the Closing in substantially the same manner as conducted as of the date hereof; provided, further notwithstanding the foregoing, the foregoing representation regarding the Circles Purchase Assets does not take into account any transition services agreement, shared services agreement, or similar agreement that may exist between Circles and CVG. The Purchased Assets constitute all of the material rights, property and assets necessary to conduct the Business as conducted as of the date hereof (subject to any Excluded Contracts that the Purchasers elect not to acquire as provided in Section 2.3(d)). Except for the Excluded Assets set forth in Section 2.2(a), Section 2.2(e) and Section 2.2(f), none of the Excluded Assets are material to or necessary for the conduct of the Business. The Purchased Assets include all material books and records owned, primarily used or primarily held for use by any Seller Multi-Application Technology pursuant to Section 2.5 and, as applicable, a valid and binding sublicense under the Licensed Intellectual Property (as defined in the Acrux License) pursuant with respect to the Sublicense AgreementBusiness. Except as set forth on Schedule 6.14(a) No Affiliate of the any Seller Disclosure Schedule, no Subsidiary of the that is not a Seller owns, beneficially or of record, or under this Agreement has any rightsright, title or interest in, to or under any Purchased Asset properties, assets and rights primarily used in, or conducts primarily held for use in, the Business, other than immaterial assets, and no Seller or Affiliate of any part Seller has any claim against the Business or any Seller in respect of the Evamist Business, and there are no employees of any Subsidiary of the Seller employed in the Evamist Business or who perform tasks that are necessary for the proper operation of the Evamist Business.
(b) The Purchased Assets (together with the rights of the Acquiror and its Affiliates under the Related Agreements), the rights granted pursuant to Section 2.5 and, as applicable, pursuant to the Sublicense Agreement constitute all of the assets, Contracts, Required Permits, rights and services required for the continued operation of the Evamist Business by the Acquiror as conducted by the Seller during the past twelve (12) months.
(c) Each item of equipment which is a Purchased Asset (other than equipment set forth on Schedule 6.14(c) of the Seller Disclosure Schedule) is in good operating condition for the purposes for which it is currently being used, subject to ordinary wear and tear, is free from any material defect and has been maintained in all material respects in accordance with generally accepted industry practice.
(d) The Seller has not experienced any out-of-stock or back-order situation with respect to the Evamist Business
(e) The Seller does not own or control any Evamist Product Improvements, and has not granted to any third party or enabled any third party to make any Evamist Product Improvements.
Appears in 1 contract
Title to Assets; Sufficiency of Assets. (a) The Seller has, and at the Closing the Seller will deliver to Acquiror, good and valid title to or, in the case of licensed assets, a valid and binding license to the Purchased Assets free and clear of all Encumbrances, a valid and binding license under the Seller Multi-Application Technology pursuant to Section 2.5 and, as applicable, a ----------- valid and binding sublicense under the Licensed Intellectual Property (as defined in the Acrux License) pursuant to the Sublicense Agreement. Except as set forth on Schedule -------- 6.14(a) of the Seller Disclosure Schedule, no Subsidiary of ------- the Seller owns, beneficially or of record, or has any rights, title or interest in, to or under any Purchased Asset or conducts any part of the Evamist Business, and there are no employees of any Subsidiary of the Seller employed in the Evamist Business or who perform tasks that are necessary for the proper operation of the Evamist Business.
(b) The Purchased Assets (together with the rights of the Acquiror and its Affiliates under the Related Agreements), the rights granted pursuant to Section 2.5 and, as applicable, pursuant to the Sublicense Agreement constitute all of the assets, Contracts, Required Permits, rights and services required for the continued operation of the Evamist Business by the Acquiror as conducted by the Seller during the past twelve (12) months.
(c) Each item of equipment which is a Purchased Asset (other than equipment set forth on Schedule 6.14(c) of ---------------- the Seller Disclosure Schedule) is in good operating condition for the purposes for which it is currently being used, subject to ordinary wear and tear, is free from any material defect and has been maintained in all material respects in accordance with generally accepted industry practice.
(d) The Seller has not experienced any out-of-stock or back-order situation with respect to the Evamist Business
(e) The Seller does not own or control any Evamist Product Improvements, and has not granted to any third party or enabled any third party to make any Evamist Product Improvements.
Appears in 1 contract
Samples: Asset Purchase Agreement (Kv Pharmaceutical Co /De/)
Title to Assets; Sufficiency of Assets. (a) The Seller hasExcept as would not, and at individually or in the Closing aggregate, reasonably be expected to be adverse in any material respect to the Seller will deliver to AcquirorBusiness or the Target Entities, taken as a whole, the Target Entities have good and valid title to or(and, in the case of Owned Real Property, valid and marketable fee simple) title to, or have a valid leasehold or licensed interest in, all of the tangible and intangible assets, a valid properties and binding license to rights (real and personal, including all Intellectual Property) that (i) are primarily used or held for use in connection with the Purchased Assets Business, (ii) are reflected on the Financial Statements or (iii) were acquired by the Business after the Balance Sheet Date (collectively, the “Assets”), in each case, free and clear of all Encumbrances, a valid except for Permitted Encumbrances, it being understood that this representation and binding license under warranty shall not apply to any Asset disposed of by the Seller Multi-Application Technology pursuant Target Entities (x) after the Balance Sheet Date and prior to Section 2.5 and, as applicable, a valid and binding sublicense under the Licensed Intellectual Property (as defined date hereof in the Acrux Licenseordinary course of business or (y) pursuant to after the Sublicense date hereof and not in violation of this Agreement. This representation and warranty shall not apply to infringement of third party Intellectual Property, which is the subject of Section 2.13(c) hereof.
(b) Except as set forth on Schedule 6.14(a) of 2.11, the Seller Disclosure ScheduleAssets that will be owned, no Subsidiary of leased or licensed by Buyer and its Subsidiaries immediately after giving effect to the Seller ownsTransactions, beneficially or of record, or has any rights, title or interest in, to or under any Purchased Asset or conducts any part of the Evamist Business, and there are no employees of any Subsidiary of the Seller employed in the Evamist Business or who perform tasks that are necessary for the proper operation of the Evamist Business.
(b) The Purchased Assets (together with the rights of the Acquiror and its Affiliates under the Related AgreementsShared Contracts (excluding any Replicated Contracts), the rights granted Intellectual Property that will be licensed pursuant to Section 2.5 and, as applicable, 7.5 of this Agreement and the services and Intellectual Property that will be provided or licensed pursuant to the Sublicense Agreement Transition Services Agreement, constitute all of the assets, Contracts, Required Permits, properties and rights and services required for the continued operation conduct of the Evamist Business by in all material respects as of (i) the Acquiror as conducted by the Seller during the past twelve (12) months.
(c) Each item of equipment which is a Purchased Asset Balance Sheet Date (other than equipment such assets, properties and rights acquired or disposed of by the Target Entities in the ordinary course of business, after the Balance Sheet Date and prior to the date hereof) and (ii) the date of this Agreement (other than such assets, properties and rights acquired, or disposed of by the Target Entities in accordance with this Agreement, after the date of this Agreement). After giving effect to the Transactions, Harsco and the Non-Company Affiliates (including, for the avoidance of doubt, the Asset Sellers) will not own or have any interest in (other than to the extent resulting from their ownership of the Harsco Partnership Interests) any material tangible or intangible assets, material properties or rights (real or personal, including Intellectual Property) that are used or held for use in connection with the Business as of date hereof except for Intellectual Property that will be licensed pursuant to Section 7.5 of this Agreement, the services and Intellectual Property that will be provided or licensed pursuant to the Transition Services Agreement, the Shared Contracts, the Excluded Assets and as set forth on Schedule 6.14(c) of the Seller Disclosure Schedule) is in good operating condition for the purposes for which it is currently being used, subject to ordinary wear and tear, is free from any material defect and has been maintained in all material respects in accordance with generally accepted industry practice2.11.
(d) The Seller has not experienced any out-of-stock or back-order situation with respect to the Evamist Business
(e) The Seller does not own or control any Evamist Product Improvements, and has not granted to any third party or enabled any third party to make any Evamist Product Improvements.
Appears in 1 contract
Samples: Purchase Agreement (Harsco Corp)
Title to Assets; Sufficiency of Assets. (ai) The Seller has, and at the Closing the Seller will deliver to Acquiror, has good and valid marketable title to orto, in the case of licensed assets, or a valid and binding leasehold interest in or a license to the Purchased Assets free and clear of all Encumbrancesto, a valid and binding license under the Seller Multi-Application Technology pursuant to a license agreement listed in Section 2.5 and, as applicable, a valid and binding sublicense under the Licensed Intellectual Property (as defined in the Acrux License) pursuant to the Sublicense Agreement. Except as set forth on Schedule 6.14(a3(k)(iv) of the Seller Disclosure Schedule, no Subsidiary the Acquired Assets, free and clear of all Liens or restriction on transfer, and Seller has and will convey at the Seller owns, beneficially or of recordFirst Closing good title to, or has any rights, title a valid leasehold interest in or interest in, to or under any Purchased Asset or conducts any part of the Evamist Business, and there are no employees of any Subsidiary of the Seller employed in the Evamist Business or who perform tasks that are necessary for the proper operation of the Evamist Business.
(b) The Purchased Assets (together with the rights of the Acquiror and its Affiliates under the Related Agreements), the rights granted pursuant to Section 2.5 and, as applicablea license to, pursuant to the Sublicense Agreement constitute all of the assets, Contracts, Required Permits, rights and services required for the continued operation of the Evamist Business by the Acquiror as conducted by the Seller during the past twelve (12) months.
(c) Each item of equipment which is a Purchased Asset (other than equipment set forth on Schedule 6.14(clicense agreement listed in Section 3(k)(iv) of the Seller Disclosure Schedule) is , all of its personal property, tangible and intangible, included in good operating condition for the purposes for which it is currently being usedAcquired Assets, subject to ordinary wear free and tear, is free from any material defect and has been maintained in clear of all material respects in accordance with generally accepted industry practiceLiens.
(dii) The Acquired Assets and the Excluded Assets are all of the assets used or held for use in or owned or possessed by or arising from the operation of the Genomics Business. Except as set forth in Section 3(e)(ii) of the Seller Disclosure Schedule, the machinery and equipment included in the Acquired Assets (A) are in good working order (reasonable wear and tear excepted), (B) have been and shall through the First Closing be maintained in a manner consistent with the past maintenance practices of Seller, (C) are usable in the Ordinary Course of Business and (D) are usable for purposes of the Business for which they were acquired.
(iii) Except as specifically set forth in Section 3(e)(iii) of the Seller Disclosure Schedule, the Acquired Assets constitute all of the assets necessary for Buyer to operate the Genomics Business in a manner substantially equivalent to the manner in which Seller has not experienced any out-of-stock or back-order situation with respect operated the Genomics Business prior to and through the Evamist Business
(e) The Seller does not own or control any Evamist Product Improvements, and has not granted to any third party or enabled any third party to make any Evamist Product ImprovementsFirst Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Napro Biotherapeutics Inc)
Title to Assets; Sufficiency of Assets. (a) The Seller hasExcept as would not, individually or in the aggregate, reasonably be expected to be materially adverse to the SLS Business or to the SLS Entities, taken as a whole, Scotts and at its Subsidiaries (including the SLS Entities) have (and as of the Closing the Seller SLS Entities themselves will deliver have, other than with respect to Acquirorrights or assets (x) to be provided (or for which the benefit is to be provided) to the SLS Entities by Scotts and the Non-SLS Subsidiaries pursuant to the Ancillary Agreements, (y) that are (or for which the benefit is), between the date hereof and the Closing Date, offered in writing to the Chief Financial Officer of TruGreen Holdings to be provided by Scotts for inclusion in any such Ancillary Agreement but which TruGreen Holdings has notified Scotts in writing that it will not require (or fails to reply on a reasonably timely basis) pursuant to any such Ancillary Agreement (the “Declined Services”) or (z) pursuant to or under Shared Contracts) good and valid title to or(and, in the case of SLS Owned Real Property, good, valid and marketable fee simple) title to, or have a valid leasehold or licensed interest in, or has a legal right to use, all of the tangible and intangible assets, a valid properties and binding license to rights (real and personal, including all Intellectual Property) that (i) are primarily used or held for use in connection with the Purchased Assets SLS Business, (ii) are reflected on the SLS Financial Statements or (iii) were acquired by the SLS Business after the Balance Sheet Date for use primarily by, or in connection with, the SLS Business, in each case other than the Scotts Marks (collectively, the “SLS Assets”), in each case, free and clear of all Encumbrances, a valid except for Permitted Encumbrances, other than any SLS Assets disposed of by the SLS Entities or the SLS Business (x) after the Balance Sheet Date and binding license under prior to the Seller Multi-Application Technology pursuant to Section 2.5 and, as applicable, a valid and binding sublicense under the Licensed Intellectual Property (as defined date hereof in the Acrux Licenseordinary course of business or (y) pursuant to after the Sublicense date hereof and not in violation of this Agreement. Except as set forth on Schedule 6.14(a) of the Seller Disclosure Schedule, no Subsidiary of the Seller owns, beneficially or of record, or has any rights, title or interest in, to or under any Purchased Asset or conducts any part of the Evamist Business, and there are no employees of any Subsidiary of the Seller employed in the Evamist Business or who perform tasks that are necessary for the proper operation of the Evamist Business.
(b) The Purchased Assets (SLS Assets, together with the rights of the Acquiror and its Affiliates under the Related Agreements), the rights granted Shared Contracts to be replicated pursuant to Section 2.5 and5.13(b), as applicable, Intellectual Property that will be licensed pursuant to Section 5.12 (including under the Trademark License Agreement) and the services and Intellectual Property that will be provided or licensed pursuant to the Sublicense Transition Services Agreement constitute all and the services and employees to be provided pursuant to the Employee Leasing Agreement, are sufficient to conduct the SLS Business in substantially the same manner as conducted, as of the assetsBalance Sheet Date, Contracts, Required Permits, rights the date hereof and services required for the continued operation of the Evamist Business by the Acquiror as conducted by the Seller during the past twelve (12) months.
(c) Each item of equipment which is a Purchased Asset (other than equipment set forth on Schedule 6.14(c) of the Seller Disclosure Schedule) is in good operating condition for the purposes for which it is currently being used, subject to ordinary wear and tear, is free from any material defect and has been maintained in all material respects in accordance with generally accepted industry practice.
(d) The Seller has not experienced any out-of-stock or back-order situation with respect immediately prior to the Evamist Business
(e) The Seller does not own or control any Evamist Product Improvements, and has not granted to any third party or enabled any third party to make any Evamist Product ImprovementsClosing.
Appears in 1 contract
Samples: Contribution and Distribution Agreement (Scotts Miracle-Gro Co)
Title to Assets; Sufficiency of Assets. Except as set forth in Schedule 4.3, the Company or its applicable Subsidiary owns or leases (aabsent any defaults under any such lease by the Company or, to the Knowledge of the Company, any third parties (and no event has occurred that with the lapse of time or the giving of notice, or both, would constitute such a default)) The Seller hasall tangible personal property, including all buildings, machinery, equipment, and at the Closing the Seller will deliver to Acquirorall other material tangible assets, good and valid title to orused by it in connection with its business as presently conducted, in the case of licensed assetseach case, a valid and binding license to the Purchased Assets free and clear of all Encumbrancesany Encumbrance, a valid except for Encumbrances for (a) Taxes, assessments and binding license under the Seller Multi-Application Technology pursuant similar charges not yet due and payable or contested in good faith by appropriate proceedings and with respect to Section 2.5 and, as applicable, a valid and binding sublicense under the Licensed Intellectual Property (as defined which adequate reserves in accordance with GAAP have been established in the Acrux License) pursuant to the Sublicense Agreement. Except as set forth on Schedule 6.14(a) of the Seller Disclosure Schedule, no Subsidiary of the Seller owns, beneficially or of recordFinancial Statements, or has any rights, title or interest in, to or under any Purchased Asset or conducts any part of the Evamist Business, and there are no employees of any Subsidiary of the Seller employed in the Evamist Business or who perform tasks that are necessary for the proper operation of the Evamist Business.
(b) The Purchased Assets (together mechanic’s, material men’s, contractor’s, repairman’s or similar liens arising in the ordinary course of business, consistent with the rights of the Acquiror past practice. Such property and its Affiliates under the Related Agreements), the rights granted pursuant to Section 2.5 and, as applicable, pursuant to the Sublicense Agreement constitute all of the assets, Contracts, Required Permits, rights and services required for the continued operation of the Evamist Business by the Acquiror as conducted by the Seller during the past twelve (12) months.
(c) Each item of equipment which is a Purchased Asset (other than equipment set forth on Schedule 6.14(c) of the Seller Disclosure Schedule) is assets are in good satisfactory operating condition for the purposes for which it is currently being usedand free from defects, in each case, subject to ordinary wear and tear, is free from any material defect and has are suitable for the purposes used. Such property and assets constitute all of the properties and assets used or held for use in connection with the business of the Company and its Subsidiaries during the past twelve months (except Cash and Cash Equivalents disposed of, accounts receivable collected, prepaid expenses realized, Contracts fully performed, and properties or assets sold or replaced by equivalent properties or assets, in each case in the ordinary course of business). The assets of the Company and its Subsidiaries constitute all of the assets necessary to conduct the business of the Company and its Subsidiaries as conducted as of the date of this Agreement and to permit the Surviving Company and its Subsidiaries to conduct such businesses after the Effective Time in the same manner as such businesses are currently conducted and will have been maintained in all material respects in accordance with generally accepted industry practice.
(d) The Seller conducted immediately prior to the Effective Time. There has not experienced any out-of-stock or back-order situation with respect occurred and, to the Evamist Business
Knowledge of the Company, there is not expected to occur any circumstance or event that would (ea) The Seller does not own cause any asset of the Company or control any Evamist Product Improvementsof its Subsidiaries to cease to be owned or leased (as applicable) by the Company prior to the Effective Time or cease to be owned or leased (as applicable) by the Surviving Company immediately after the Effective Time; or (b) interfere with the current use, and has not granted to occupancy or operation of any third party or enabled any third party to make any Evamist Product Improvementssuch asset.
Appears in 1 contract
Samples: Merger Agreement (Liveperson Inc)
Title to Assets; Sufficiency of Assets. (a) The Seller hasExcept as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and at the Closing the Seller will deliver to Acquiror, good and Company Subsidiaries have valid title to or(and, in the case of licensed assetsOwned Real Property, valid and marketable fee simple) title to, or have a valid leasehold or licensed interest in, all of the tangible and binding license to intangible assets (real and personal, including all Intellectual Property (except as set forth on Schedule 2.13(a)-1)) that (i) are used or held for use in connection with the Purchased Assets Business, (ii) are reflected on the Financial Statements or (iii) were acquired by the Business after the Balance Sheet Date (collectively, the “Assets”), in each case, free and clear of all Encumbrances, a valid except for Permitted Encumbrances, it being understood that this representation and binding license under warranty shall not apply to any Asset disposed of by the Seller Multi-Application Technology pursuant to Section 2.5 and, as applicable, a valid Company or any Company Subsidiary (x) after the Balance Sheet Date and binding sublicense under the Licensed Intellectual Property (as defined in the Acrux License) pursuant prior to the Sublicense Agreement. Except as set forth on Schedule 6.14(a) of the Seller Disclosure Schedule, no Subsidiary of the Seller owns, beneficially or of recorddate hereof, or has any rights, title or interest in, to or under any Purchased Asset or conducts any part (y) after the date hereof and not in violation of the Evamist Business, and there are no employees of any Subsidiary of the Seller employed in the Evamist Business or who perform tasks that are necessary for the proper operation of the Evamist Businessthis Agreement.
(b) The Purchased Assets that will be owned, leased or licensed by the Company and the Company Subsidiaries immediately after giving effect to the Reorganization (excluding, for the avoidance of doubt, the Asset Sale Subsidiaries), together with the rights of the Acquiror and its Affiliates under the Related AgreementsShared Contracts to be replicated pursuant to Section 4.14(b), the rights granted pursuant to Section 2.5 and, as applicable, Leased Employee Agreement and the services and Intellectual Property that will be provided or licensed pursuant to the Sublicense Agreement Transition Services Agreement, constitute all of the assets, Contracts, Required Permits, properties and rights and services required for the continued operation conduct of the Evamist Business by the Acquiror as conducted by ITW and its Subsidiaries (including the Seller during Company and the past twelve (12Company Subsidiaries) months.
(c) Each item of equipment which is a Purchased Asset (other than equipment set forth on Schedule 6.14(c) of the Seller Disclosure Schedule) is in good operating condition for the purposes for which it is currently being used, subject to ordinary wear and tear, is free from any material defect and has been maintained in all material respects in accordance with generally accepted industry practice.
(d) The Seller has not experienced any out-of-stock or back-order situation with respect as of the Balance Sheet Date, the date hereof and immediately prior to the Evamist Business
Closing. After giving effect to the Reorganization, ITW and the Non-Company Affiliates (eincluding, for the avoidance of doubt, the Asset Sale Subsidiaries) The Seller does will not own or control have any Evamist Product Improvementsinterest in (other than to extent resulting from their ownership of the Common Units) any tangible or intangible assets (real or personal, including Intellectual Property) that are used or held for use in connection with the Business and has not granted that are material to any third party the conduct of the Business except the Shared Contracts to be replicated pursuant to Section 4.14(b), the Leased Employee Agreement and the services and Intellectual Property that will be provided or enabled any third party licensed pursuant to make any Evamist Product Improvementsthe Transition Services Agreement.
Appears in 1 contract
Title to Assets; Sufficiency of Assets.
(a) The Seller hasExcept as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and at the Closing the Seller will deliver to Acquiror, good and Company Subsidiaries have valid title to or(and, in the case of licensed assetsOwned Real Property, valid and marketable fee simple) title to, or have a valid leasehold or licensed interest in, all of the tangible and binding license to intangible assets (real and personal, including all Intellectual Property (except as set forth on Schedule 2.13(a)-1)) that (i) are used or held for use in connection with the Purchased Assets Business, (ii) are reflected on the Financial Statements or (iii) were acquired by the Business after the Balance Sheet Date (collectively, the “Assets”), in each case, free and clear of all Encumbrances, a valid except for Permitted Encumbrances, it being understood that this representation and binding license under warranty shall not apply to any Asset disposed of by the Seller Multi-Application Technology pursuant to Section 2.5 and, as applicable, a valid Company or any Company Subsidiary (x) after the Balance Sheet Date and binding sublicense under the Licensed Intellectual Property (as defined in the Acrux License) pursuant prior to the Sublicense Agreement. Except as set forth on Schedule 6.14(a) of the Seller Disclosure Schedule, no Subsidiary of the Seller owns, beneficially or of recorddate hereof, or has any rights, title or interest in, to or under any Purchased Asset or conducts any part (y) after the date hereof and not in violation of the Evamist Business, and there are no employees of any Subsidiary of the Seller employed in the Evamist Business or who perform tasks that are necessary for the proper operation of the Evamist Business.this Agreement.
(b) The Purchased Assets that will be owned, leased or licensed by the Company and the Company Subsidiaries immediately after giving effect to the Reorganization (excluding, for the avoidance of doubt, the Asset Sale Subsidiaries), together with the rights of the Acquiror and its Affiliates under the Related AgreementsShared Contracts to be replicated pursuant to Section 4.14(b), the rights granted pursuant to Section 2.5 and, as applicable, Leased Employee Agreement and the services and Intellectual Property that will be provided or licensed pursuant to the Sublicense Agreement Transition Services Agreement, constitute all of the assets, Contracts, Required Permits, properties and rights and services required for the continued operation conduct of the Evamist Business by the Acquiror as conducted by ITW and its Subsidiaries (including the Seller during Company and the past twelve (12Company Subsidiaries) months.
(c) Each item of equipment which is a Purchased Asset (other than equipment set forth on Schedule 6.14(c) of the Seller Disclosure Schedule) is in good operating condition for the purposes for which it is currently being used, subject to ordinary wear and tear, is free from any material defect and has been maintained in all material respects in accordance with generally accepted industry practice.
(d) The Seller has not experienced any out-of-stock or back-order situation with respect as of the Balance Sheet Date, the date hereof and immediately prior to the Evamist Business
Closing. After giving effect to the Reorganization, ITW and the Non- Company Affiliates (eincluding, for the avoidance of doubt, the Asset Sale Subsidiaries) The Seller does will not own or control have any Evamist Product Improvementsinterest in (other than to extent resulting from their ownership of the Common Units) any tangible or intangible assets (real or personal, including Intellectual Property) that are used or held for use in connection with the Business and has not granted that are material to any third party the conduct of the Business except the Shared Contracts to be replicated pursuant to Section 4.14(b), the Leased Employee Agreement and the services and Intellectual Property that will be provided or enabled any third party licensed pursuant to make any Evamist Product Improvementsthe Transition Services Agreement.
Appears in 1 contract
Samples: Investment Agreement
Title to Assets; Sufficiency of Assets. Except as would not reasonably be expected, individually or in the aggregate, to have a material effect on the Acquired Companies, and except (a) The for Permitted Liens, (b) as set forth on Section 4.17 of the Company Disclosure Schedule and (c) for the services to be provided (whether or not utilized) by Seller has(or its applicable Affiliates) pursuant to the Transition Services Agreement, and at as of the Closing Closing, the Seller Acquired Companies will deliver to Acquiror, have good and valid title to, or valid leases, licenses or rights to oruse, all assets that are material to conduct the business of the Acquired Companies, taken as a whole, in substantially the case same manner as it is currently conducted. To the Knowledge of licensed assetsSeller, Section 4.17 of the Company Disclosure Schedule sets forth a valid and binding license to the Purchased Assets free and clear complete list of all Encumbrancesequipment and rolling stock of the Acquired Companies as of January 31, a valid and binding license under the Seller Multi-Application Technology pursuant to Section 2.5 and2020. Except as would not reasonably be expected, as applicable, a valid and binding sublicense under the Licensed Intellectual Property (as defined individually or in the Acrux Licenseaggregate, to have a material effect on the Acquired Companies, and except (a) as set forth on Section 4.17 of the Company Disclosure Schedule and (b) for the services to be provided (whether or not utilized) by Seller (or its applicable Affiliates) pursuant to the Sublicense Transition Services Agreement. Except , as set forth on Schedule 6.14(a) of the Seller Disclosure ScheduleClosing, no Subsidiary the assets of the Seller ownsAcquired Companies shall, beneficially or of record, or has any rights, title or interest in, to or under any Purchased Asset or conducts any part of the Evamist Business, and there are no employees of any Subsidiary of the Seller employed in the Evamist Business or who perform tasks that are necessary for the proper operation of the Evamist Business.
(b) The Purchased Assets (together with the rights of the Acquiror and its Affiliates under the Related Agreements)aggregate, the rights granted pursuant to Section 2.5 and, as applicable, pursuant to the Sublicense Agreement constitute all of the assets, Contracts, Required Permits, rights and services required for assets necessary to conduct the continued operation business of the Evamist Business by Acquired Companies, taken as a whole, in substantially the Acquiror same manner as it is currently conducted by the Seller during the past twelve (12) months.
(c) Each item of equipment which is a Purchased Asset (other than equipment set forth on Schedule 6.14(c) as of the Seller Disclosure Schedule) is date hereof. Except as would not reasonably be expected, individually or in the aggregate, to have a material effect on the Acquired Companies, the machinery, equipment, leasehold improvements and other tangible assets that the Acquired Companies own or lease are in good operating condition and repair (subject to normal wear and tear) and are suitable for the purposes for which it is currently being they are presently used. For the avoidance of doubt, subject the representations and warranties in this Section 4.17 shall not apply to, and the assets referred to ordinary wear herein shall not include, any rights in any real property, or real property assets, regardless whether such rights or assets are (or are purported to be) owned, leased, vested or unvested, and tearwhether created by deed, is free from any material defect contract, easement, license, patent or otherwise. . Section 4.18 of the Company Disclosure Schedule sets forth the ten (10) largest customers (by total aggregate revenue received by each of the Acquired Companies) (the “Significant Customers”) and has been maintained the ten (10) largest suppliers (by total aggregate spend amounts paid to such suppliers by, or on behalf of, each of the Acquired Companies) (the “Significant Suppliers”), in all material respects in accordance with generally accepted industry practice.
each case, of the Acquired Companies for the twelve (d) The Seller has not experienced any out-of-stock or back-order situation with respect 12)-month period ending on December 31, 2019. As of the date hereof, to the Evamist Business
(e) The Seller does not own Knowledge of Seller, no Significant Customer or control Significant Supplier has cancelled or otherwise terminated, or, to the Knowledge of Seller, threatened, to cancel or otherwise to terminate, its relationship with any Evamist Product Improvements, and has not granted to any third party or enabled any third party to make any Evamist Product ImprovementsAcquired Company.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Eagle Materials Inc)