Transfer of Assets On the basis of the representations, warranties, covenants and agreements and subject to the satisfaction or waiver of the conditions set forth in this Agreement, at the Closing, each Seller shall sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase and acquire from each Seller, free and clear of all Security Interests, all of such Seller’s right, title and interest in and to all assets used by such Seller in or relating to the Business (collectively, the “Acquired Assets”), including, without limitation, the following assets:
(i) except as otherwise described herein, all of such Seller’s right, title and interest in and to all inventories, wherever located, of Business Products, including all finished goods, consigned goods, work-in-progress, raw materials, spare parts, packaging, accessories and all other materials and supplies to be used, consumed, sold, resold or distributed by such Seller, and all warranties and guarantees, if any, express or implied, by the manufacturers or Seller of any such item or component part thereof, rights of return, rebate rights, over-payment recovery rights and any other rights of such Seller relating to these items (collectively, the “Inventory”):
(ii) all machinery, equipment, tools, furniture, office equipment, computer hardware, supplies, materials, vehicles and other items of tangible personal property (other than the Inventory) used in or relating to the Business (other than the Excluded Assets) and all warranties and guarantees, if any, express or implied, rights of return, rebate rights, over-payment recovery rights and any other rights of such Seller relating to these items, in each case existing for the benefit of such Seller in connection therewith to the extent transferable (collectively, the “Personal Property”):
(iii) all of such Seller’s right, title and interest in and to the Designated Contracts;
(iv) all of such Seller’s right, title and interest in and to all Business Intellectual Property;
(v) to the extent assignable, all of such Seller’s right, title and interest in and to all Permits relating to the Business;
(vi) all other assets relating to existing customer relationships and all written materials, data and records relating to the Business (in whatever form or medium), including (A) client, customer, prospect, supplier, dealer and distributor lists and records, (B) information regarding referral sources, (C) product catalogs and brochures, (D) sales and marketing, advertising and promotional materials, (E) research and development materials, reports and records, (F) production reports and records, (G) equipment logs, (H) service, warranty and claim records, (I) records relating to the Inventory, (J) maintenance records and other documents relating to the Personal Property, (K) purchase orders and invoices, (L) sales orders and sales order log books, (M) material safety data sheets, (N) price lists, (O) quotations and bids, (P) operating guides and manuals, (Q) correspondence, (R) financial books, records, journals and ledgers, (S) product ideas and developments and (T) plans and specifications, plats, surveys, drawings, blueprints and photographs;
(vii) all other intangible rights and property of such Seller relating to the Business, including (A) going concern value, (B) the goodwill of such Seller relating to the Business as conducted by such Seller, (C) directory, telecopy names, numbers, addresses and listings, and all rights that such Seller may have to institute or maintain any action to protect the same and recover damages for any misappropriation or misuses thereof;
(viii) all insurance benefits, including rights under and proceeds from, insurance policies providing coverage for the Acquired Assets or such Seller relating to the Business, where such rights, benefits and proceeds relate to events occurring prior to the Closing;
(ix) all rights with respect to deposits, prepaid expenses, claims for refunds and rights to offset related to the Business (excluding rights relating to the prior payment of Taxes) and interest payable with respect to any of the foregoing;
(x) all claims (including claims for past infringement or misappropriation of Business Intellectual Property or rights related thereto included in the Acquired Assets) and causes of action of such Seller relating to the Business against any other Person, whether or not such claims and causes of action have been asserted, and all rights of indemnity, warranty rights, rights of contribution, rights to refunds, rights of reimbursement and other rights of recovery of such Seller (regardless of whether such rights are currently exercisable) relating to the Acquired Assets;
(xi) all leasehold interests in the HK Leased Property, including all improvements and fixtures thereon and all rights and easements appurtenant thereto;
(xii) all leasehold or other contractual interests in the California Warehouse Property;
(xiii) all leasehold interests in the Arizona Leased Property, including all improvements and fixtures thereon and all rights and easements appurtenant thereto; and
(xiv) all accounts receivable of such Seller of any kind.
Transfer of Membership Interests (a) The Member may transfer its Membership Interest, in whole but not in part, but the transferee shall not be admitted as a Member except in accordance with Section 6.07. Until the transferee is admitted as a Member, the Member shall continue to be the sole member of the Company (subject to Section 1.02) and to be entitled to exercise any rights or powers of a Member of the Company with respect to the Membership Interest transferred.
(b) To the fullest extent permitted by law, any purported transfer of any Membership Interest in violation of the provisions of this Agreement shall be wholly void and shall not effectuate the transfer contemplated thereby. Notwithstanding anything contained herein to the contrary and to the fullest extent permitted by law, the Member may not transfer any Membership Interest in violation of any provision of this Agreement or in violation of any applicable federal or state securities laws.
Transfer of Membership Interest The Sole Member may Transfer any part or all of its rights and interest (including, but not limited to, its Capital Account) in the Company (each a “Membership Interest”) now owned or hereafter acquired to any Person, and the transferee of such Membership Interest shall become a Member of the Company.
Transfer of the Property Any sale, lease, conveyance, assignment, pledge, encumbrance, or transfer of all or any part of the Property or any interest therein, voluntarily or involuntarily, whether by operation of law or otherwise, except: (i) sales or transfers of items of the Accessories which have become obsolete or worn beyond practical use and which have been replaced by adequate substitutes, owned by Mortgagor, having a value equal to or greater than the replaced items when new; and (ii) the grant, in the ordinary course of business, of a leasehold interest in a part of the Improvements to a tenant for occupancy, not containing a right or option to purchase and not in contravention of any provision of this Mortgage or of any other Loan Document. Mortgagee may, in its sole discretion, waive a default under this paragraph, but it shall have no obligation to do so, and any waiver may be conditioned upon such one or more of the following (if any) which Mortgagee may require: the grantee’s integrity, reputation, character, creditworthiness and management ability being satisfactory to Mortgagee in its sole judgment and grantee executing, prior to such sale or transfer, a written assumption agreement containing such terms as Mortgagee may require, a principal paydown on the Note, an increase in the rate of interest payable under the Note, a transfer fee, a modification of the term of the Note, and any other modification of the Loan Documents which Mortgagee may require. NOTICE - THE DEBT SECURED HEREBY IS SUBJECT TO CALL IN FULL IN THE EVENT OF SALE OR CONVEYANCE OF THE PROPERTY CONVEYED.
Sale or Transfer of Assets; Suspension of Business Operations The Borrower will not sell, lease, assign, transfer or otherwise dispose of (i) the stock of any Subsidiary, (ii) all or a substantial part of its assets, or (iii) any Collateral or any interest therein (whether in one transaction or in a series of transactions) to any other Person other than the sale of Inventory in the ordinary course of business and will not liquidate, dissolve or suspend business operations. The Borrower will not transfer any part of its ownership interest in any Intellectual Property Rights and will not permit any agreement under which it has licensed Licensed Intellectual Property to lapse, except that the Borrower may transfer such rights or permit such agreements to lapse if it shall have reasonably determined that the applicable Intellectual Property Rights are no longer useful in its business. If the Borrower transfers any Intellectual Property Rights for value, the Borrower will pay over the proceeds to the Lender for application to the Obligations. The Borrower will not license any other Person to use any of the Borrower’s Intellectual Property Rights, except that the Borrower may grant licenses in the ordinary course of its business in connection with sales of Inventory or provision of services to its customers.
Transfer of Business Where a transfer of business occurs, an Employee who worked with the old employer and who continues in the service of the new employer will be entitled to count her/his service with the old employer as service with the new employer for the purposes of this clause.
Sale and Transfer of Assets On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Sellers shall sell, convey, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept from the Sellers free and clear of any Liens, other than Permitted Liens, all of the Sellers' right, title and interest at the Closing in and to all of the properties, assets and rights of every kind and description, whether accrued, contingent or otherwise, exclusively related to or exclusively used or held for use in connection with the Business (other than the Excluded Assets), including all assets (other than Excluded Assets) that may have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at the Closing in and to all the following (except to the extent they constitute Excluded Assets):
(a) all Intellectual Property owned or licensed by each Seller and used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(a);
(b) all Contracts (other than Excluded Contracts) used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(b) to which each Seller is a party (collectively, the "Assumed Contracts");
(c) all rights of each Seller in and to the real property leases used in or relating exclusively to the conduct of the Business, together with all fixtures and other improvements thereon ("Leases"), including the Leases as set forth on Schedule 2.1(c);
(d) all accounts receivable, trade receivables and other amounts owing from customers and clients of each Seller;
(e) all books, records, customer lists, vendor lists, supplier lists, cost and pricing information, business plans, quality control records and manuals, blueprints, research and development files, used in or relating exclusively to the conduct of the Business;
(f) all personal computers, computer hardware and software of each Seller used in or relating exclusively to the conduct of the Business;
(g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Seller;
(h) all Permits of each Seller used in or relating exclusively to the conduct of the Business set forth on Schedule 2.1(h);
(i) all tangible personal property, including all machinery, vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare and replacement parts, fuel and other tangible property used in or relating exclusively to the conduct of the Business owned or leased by each Seller, including without limitation, as set forth on Schedule 2.1(i);
(j) all sales support, sales collateral, promotional materials, advertising materials and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or relating exclusively to the conduct of the Business;
(k) all rights, claims (other than Post-Closing Claims), credits, causes of action or rights of set-off against third parties relating exclusively to the Business or affecting any of the Purchased Assets, including, to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively to the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract or agreement which otherwise constitute a portion of the Purchased Assets;
(o) to the extent available, all lists of present customers of the Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and
(p) the Business as a going concern, including goodwill.
Transfer of Interests The Member may sell, assign, pledge, encumber, dispose of or otherwise transfer all or any part of the economic or other rights that comprise its Interest. The transferee shall have the right to be substituted for the Member under this Agreement for the transferor if so determined by the Member. No Member may withdraw or resign as Member except as a result of a transfer pursuant to this Section 7 in which the transferee is substituted for the Member. None of the events described in Section 18-304 of the Act shall cause the Member to cease to be a Member of the Company.
Transfer of Optioned Interests For each exercise of the Equity Interest Purchase Option:
1.4.1 Party B shall cause Party C to promptly convene a shareholders’ meeting, at which a resolution shall be adopted approving Party B’s transfer of the Optioned Interests to Party A and/or the Designee(s);
1.4.2 Party B shall obtain written statements from the other shareholders of Party C giving consent to the transfer of the equity interest to Party A and/or the Designee(s) and waiving any right of first refusal related thereto;
1.4.3 Party B shall execute an equity interest transfer contract with respect to each transfer with Party A and/or each Designee (whichever is applicable), in accordance with the provisions of this Agreement and the Equity Interest Purchase Option Notice regarding the Optioned Interests;
1.4.4 The relevant Parties shall execute all other necessary contracts, agreements or documents, obtain all necessary government licenses and permits and take all necessary actions to transfer valid ownership of the Optioned Interests to Party A and/or the Designee(s), unencumbered by any security interests, and cause Party A and/or the Designee(s) to become the registered owner(s) of the Optioned Interests. For the purpose of this Section and this Agreement, “security interests” shall include securities, mortgages, third party’s rights or interests, any stock options, acquisition right, right of first refusal, right to offset, ownership retention or other security arrangements, but shall be deemed to exclude any security interest created by this Agreement, Party B’s Equity Interest Pledge Agreement and Party B’s Power of Attorney. “Party B’s Equity Interest Pledge Agreement” as used in this Agreement shall refer to the Interest Pledge Agreement executed by and among Party A, Party B and Party C on the date hereof and any modification, amendment and restatement thereto. “Party B’s Power of Attorney” as used in this Agreement shall refer to the Power of Attorney executed by Party B on the date hereof granting Party A with power of attorney and any modification, amendment and restatement thereto.
Consolidation, Merger or Sale or Transfer of Assets or Earning Power In the event that, at any time after a Person becomes an Acquiring Person, directly or indirectly, (i) the Company shall consolidate with, or merge with and into, any other Person, (ii) any Person shall consolidate with the Company, or merge with and into the Company and the Company shall be the continuing or surviving corporation of such merger and, in connection with such merger, all or part of the Common Shares shall be changed into or exchanged for stock or other securities of any other Person (or the Company) or cash or any other property, or (iii) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or more transactions, assets or earning power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any other Person other than the Company or one or more of its wholly-owned Subsidiaries, then, and in each such case, proper provision shall be made so that (A) each holder of a Right (except as otherwise provided herein) shall thereafter have the right to receive, upon the exercise thereof at a price equal to the then current Purchase Price multiplied by the number of one one-thousandths of a Preferred Share for which a Right is then exercisable, in accordance with the terms of this Agreement and in lieu of Preferred Shares, such number of Common Shares of such other Person (including the Company as successor thereto or as the surviving corporation) as shall equal the result obtained by (x) multiplying the then current Purchase Price by the number of one one-thousandths of a Preferred Share for which a Right is then exercisable and dividing that product by (y) 50% of the then current per share market price of the Common Shares of such other Person (determined pursuant to Section 11(d) hereof) on the date of consummation of such consolidation, merger, sale or transfer; (B) the issuer of such Common Shares shall thereafter be liable for, and shall assume, by virtue of such consolidation, merger, sale or transfer, all the obligations and duties of the Company pursuant to this Agreement; (C) the term "Company" shall thereafter be deemed to refer to such issuer; and (D) such issuer shall take such steps (including, but not limited to, the reservation of a sufficient number of its Common Shares in accordance with Section 9 hereof) in connection with such consummation as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be, in relation to the Common Shares thereafter deliverable upon the exercise of the Rights. The Company covenants and agrees that it shall not consummate any such consolidation, merger, sale or transfer unless prior thereto the Company and such issuer shall have executed and delivered to the Rights Agent a supplemental agreement so providing. The Company shall not enter into any transaction of the kind referred to in this Section 13 if at the time of such transaction there are any rights, warrants, instruments or securities outstanding or any agreements or arrangements which, as a result of the consummation of such transaction, would eliminate or substantially diminish the benefits intended to be afforded by the Rights. The provisions of this Section 13 shall similarly apply to successive mergers or consolidations or sales or other transfers. For purposes hereof, the "earning power" of the Company and its Subsidiaries shall be determined in good faith by the Company's Board of Directors on the basis of the operating earnings of each business operated by the Company and its Subsidiaries during the three fiscal years preceding the date of such determination (or, in the case of any business not operated by the Company or any Subsidiary during three full fiscal years preceding such date, during the period such business was operated by the Company or any Subsidiary).
