ASSET PURCHASE AGREEMENT
Exhibit
10.7
AGREEMENT
(this “Agreement”) dated
as of July 22, 2008 between MSCI Inc., a Delaware corporation (“Buyer”), and Xxxxxx Xxxxxxx
& Co. Incorporated, a Delaware corporation (“Seller”).
The
parties hereto agree as follows:
ARTICLE
1
Section
1.01. Definitions. (a) As used
herein, the following terms have the following meanings:
“Affiliate” means, with respect
to any Person, any other Person that directly or indirectly, through one or more
intermediaries, Controls, is Controlled by, or is under common Control with,
such first Person. “Control” (and any form
thereof, including “Controlled
by”) means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.
“Applicable Law” means, with
respect to any Person, any federal, state or local law (statutory, common or
otherwise), constitution, treaty, convention, ordinance, code, rule, regulation,
order, injunction, judgment, decree, ruling or other similar requirement
enacted, adopted, promulgated or applied by a Governmental Authority that is
binding upon or applicable to such Person, as amended unless expressly specified
otherwise.
“Xxxx of Sale” means the Xxxx
of Sale and Assignment Agreement in the form attached as Exhibit A and dated
as of the Closing Date among Seller, Buyer and the other Seller
Entities.
“Business Day” means a day,
other than Saturday, Sunday or other day on which commercial banks in New York,
New York are authorized or required by Applicable Law to close.
“Closing Date” means the date
of the Closing.
“Governmental Authority” means
any transnational, domestic or foreign federal, state or local, governmental
authority, department, court, agency or official, including any political
subdivision thereof.
“Person” means an individual,
corporation, partnership, limited liability company, association, trust or other
entity or organization, including a Governmental Authority.
“Seller Entities” means,
collectively, the Seller and its Affiliates that own Purchased
Assets.
(b) Each
of the following terms is defined in the Section set forth opposite such
term:
Term
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Section
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Agreement
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Preamble
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Allocation
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Business
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Recitals
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Buyer
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Preamble
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Closing
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e-mail
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Purchase
Price
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Purchased
Assets
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Section
1.02. Other
Definitional and Interpretative Provisions. The words
“hereof”, “herein” and “hereunder” and words of like import used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof. References to Articles, Sections, Exhibits and
Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement
unless otherwise specified. All Exhibits and Schedules annexed hereto
or referred to herein are hereby incorporated in and made a part of this
Agreement as if set forth in full herein. Any capitalized terms used
in any Exhibit or Schedule but not otherwise defined therein, shall have the
meaning as defined in this Agreement. Any singular term in this
Agreement shall be deemed to include the plural, and any plural term the
singular. Whenever the words “include”, “includes” or “including” are
used in this Agreement, they shall be deemed to be followed by the words
“without limitation”, whether or not they are in fact followed by those words or
words of
2
like
import. “Writing”, “written” and comparable terms refer to printing,
typing and other means of reproducing words (including electronic media) in a
visible form. References to any agreement or contract are to that
agreement or contract as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof; provided that with respect
to any agreement or contract listed on any schedules hereto, all such
amendments, modifications or supplements must also be listed in the appropriate
schedule. References to any Person include the successors and
permitted assigns of that Person. References from or through any date
mean, unless otherwise specified, from and including or through and including,
respectively. References to “law”, “laws” or to a particular statute
or law shall be deemed also to include any and all Applicable Law.
ARTICLE
2
Section 2.01. Purchase and
Sale. Except as otherwise provided below, upon the terms and
subject to the conditions of this Agreement, Buyer agrees to purchase from the
Seller Entities and Seller agrees to sell, convey, transfer, assign and deliver,
or cause each other Seller Entity to sell, convey, transfer, assign and deliver,
to Buyer (or its designees) at the Closing, on an AS IS, WHERE IS basis, all of
Sellers’ and such other Seller Entity’s right, title and interest in, to the
assets referenced on Schedule 2.01 (the “Purchased Assets”) and all
rights, claims, credits, causes of action or rights of set-off against third
parties relating to or arising from the Purchased Assets, including unliquidated
rights under manufacturers’ and vendors’ warranties.
Section
2.02. Purchase
Price. The purchase price for the Purchased Assets (the “Purchase Price”) is $3,518,035.29 in
cash. The Purchase Price shall be paid as provided in Section 2.03.
Section
2.03. Closing. The
closing (the “Closing”)
of the purchase and sale of the Purchased Assets hereunder shall take place at
the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx at such time or place as Buyer and Seller may agree. At the
Closing:
(a) Buyer
shall deliver to Seller the Purchase Price in immediately available funds by
wire transfer to an account of Seller with a bank in New York City designated by
Seller, by notice to Buyer, not later than two Business Days prior to the
Closing Date (or if not so designated, then by certified or official bank check
payable in immediately available funds to the order of Seller in such amount).
(b) Seller
and Buyer shall enter into, and Seller shall cause the other Seller Entities to
enter into, the Xxxx of Sale and, subject to the provisions hereof,
3
Seller
shall, and shall cause the other Seller Entities to, deliver to Buyer such
deeds, bills of sale, endorsements, consents, assignments and other good and
sufficient instruments of conveyance and assignment as the parties and their
respective counsel shall deem reasonably necessary to vest in Buyer all right,
title and interest in, to and under the Purchased Assets.
ARTICLE
3
Section
3.01. Transfer
Taxes. All excise, sales, use, value added, registration
stamp, recording, documentary, conveyancing, franchise, property, transfer,
gains and similar taxes, levies, charges and fees incurred in connection with
the transactions contemplated by this Agreement shall be borne by
Buyer.
ARTICLE
4
Seller
represents and warrants to Buyer as of the date hereof and as of the Closing
Date that:
Section
4.01. Corporate Existence and
Power. Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted.
Section
4.04. Noncontravention. The execution, delivery and performance by
Seller of this Agreement and the consummation of the transactions contemplated
hereby do not and will not (i) violate the certificate of incorporation or
bylaws of Seller, (ii) violate any Applicable Law, (iii) require any consent or
other action by any Person under, or constitute a default under, any provision
of any agreement or other instrument binding upon such Seller or (iv) violate
any judgment, decree or order applicable to such Seller.
4
ARTICLE
5
Buyer
represents and warrants to Seller as of the date hereof and as of the Closing
Date that:
Section
5.01. Corporate Existence and
Power. Buyer is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted.
Section
5.02. Corporate
Authorization. The execution, delivery and performance by
Buyer of this Agreement and the consummation of the transactions contemplated
hereby are within the corporate powers of Buyer and have been duly authorized by
all necessary corporate action on the part of Buyer. This Agreement
constitutes a valid and binding agreement of Buyer.
Section
5.03. Governmental
Authorization. The execution, delivery and performance by
Buyer of this Agreement and the consummation of the transactions contemplated
hereby require no action by or in respect of, or filing with, any Governmental
Authority.
Section
5.04. Noncontravention. The
execution, delivery and performance by Buyer of this Agreement and the
consummation of the transactions contemplated hereby do not and will not (v)
violate the certificate of incorporation or bylaws of Buyer, (vi) violate any
Applicable Law, (vii) require any consent or other action by any Person under,
or constitute a default under, any provision of any agreement or other
instrument binding upon such Buyer or (viii) violate any judgment, decree or
order applicable to such Buyer.
ARTICLE
6
Buyer and
Seller agree that:
Section
6.01. Reasonable Best Efforts; Further
Assurance. Subject to the terms and conditions of this
Agreement, Buyer and Seller will use their reasonable best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary or desirable under Applicable Law to consummate the transactions
contemplated by this Agreement. Seller and Buyer agree to execute and
deliver such other documents, certificates, agreements and other writings and to
take such other actions as may be necessary or desirable in order to consummate
or implement expeditiously the transactions contemplated by this Agreement and
to vest in Buyer good title to the Purchased Assets.
5
Section
6.02. Public
Announcements. The parties agree to consult with each other
before issuing any press release or making any public statement with respect to
this Agreement or the transactions contemplated hereby and, except for any press
releases and public statements the making of which may be required by Applicable
Law or any listing agreement with any national securities exchange, will not
issue any such press release or make any such public statement prior to such
consultation.
ARTICLE
7
if to
Buyer, to:
00 Xxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxxxxxx X. Xxxxxx, General Counsel
Facsimile:
(000) 000-0000
if to
Seller, to:
Xxxxxx
Xxxxxxx & Co., Incorporated
0000
Xxxxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxx, Director of Company Law
Facsimile:
(000) 000-0000
with a
copy to:
Xxxxx Xxxx
& Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxx
X. Xxxx
Facsimile:
(000) 000-0000
or such
other address or facsimile number as such party may hereafter specify for the
purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m. in the place of
receipt and such day is a Business Day in the place of
receipt. Otherwise, any such notice, request or
6
communication
shall be deemed not to have been received until the next succeeding Business Day
in the place of receipt.
Section
7.02. Survival. The
representations and warranties of the parties hereto contained in this Agreement
shall survive the Closing.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section
7.06. Governing
Law. This Agreement shall be governed by and construed in
accordance with the law of the State of New York, without regard to the
conflicts of law rules of such state.
Section
7.07. Jurisdiction. The
parties hereto agree that any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought in the United
States District Court for the Southern District of New York or any New York
State court sitting in New York City, so long as one of such courts shall have
subject matter jurisdiction over such suit, action or proceeding, and that any
cause of action arising out of this Agreement shall be deemed to have arisen
from a transaction of business in the State of New York, and each of the parties
hereby irrevocably consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served
on any party
7
anywhere
in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service
of process on such party as provided in Section 7.01
shall be deemed effective service of process on such party.
Section
7.12. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other Governmental Authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such a determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
8
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By:
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/s/
Xxxx Xxxxxxx
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Name:
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Xxxx
Xxxxxxx
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Title:
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Corporate
Secretary and Chief Administrative Officer
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XXXXXX
XXXXXXX & CO. INCORPORATED
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
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Xxxxxx
X. Xxxxx
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Title:
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Managing
Director
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[signature
page to Asset Purchase Agreement]
Schedule
2.01
MSCI
ASSET
PURCHASE FROM XXXXXX XXXXXXX
Seller: MS
Financing Inc.
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Asset
Description
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Purchase
Price
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Purchaser: MSCI
Inc.
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Computer
equipment (67 PCs) installed at 00 Xxxx Xxxxxx, Xxx Xxxx
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201,260.15 | |||
Desks
installed at 00 Xxxx Xxxxxx, Xxx Xxxx
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333,742.68 | ||||
Audio
visual equipment installed at 00 Xxxx xxxxxx, Xxx Xxxx
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72,046.76 | ||||
Grand
Total -all at 2nd and 3rd floors 00 Xxxx Xxxxxx, Xxx Xxxx
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607,049.59 | ||||
Seller: MS
Financing Inc.
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Asset
Description
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Purchase
Price
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Purchaser: Barra
Inc.
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Leasehold
improvement on the 3rd floor of 00 Xxxx xxxxxx, Xxx
Xxxx. Including carpets, office walls, decorating and cabling
installed
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1,766,302.46 | |||
Grand
Total -all on 3rd floor 00 Xxxx Xxxxxx, Xxx Xxxx
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1,766,302.46 | ||||
Seller: Xxxxxx
Xxxxxxx & Co. Incorporated
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Asset
Description
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Purchase
Price
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Purchaser: Barra
Inc.
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Computer
servers installed in 0000 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx
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418,831.94 | |||
Furniture
on 3rd floor of 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
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9,355.46 | ||||
70
PCs installed in 000 Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxx and 0000 Xxxxxx
Xxxxxx, Xxxxxxxx Xxxxxxxxxx
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209,001.21 | ||||
Telecom
equipment installed in 0000 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx
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150,069.64 | ||||
Grand
Total
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787,258.25 | ||||
Seller:
Xxxxxx Xxxxxxx
UK
Group
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Asset
Description
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Purchase
Price
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Purchaser: MSCI
Limited
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Cabling
in London office
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32,297.53 | |||
Office
construction
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63,999.63 | ||||
Security
configuration
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46,660.81 | ||||
Grand
Total - all at 0xx
xxxxx, 00 Xxxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx
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142,957.97 | ||||
Seller: Xxxxxx
Xxxxxxx Services (UK) Limited
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Asset
Description
|
Purchase
Price
|
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Purchaser: MSCI
Limited
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Computer
equipment - 56 PCs
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70,374.20 | |||
Furniture
in 00 Xxxx Xxxxxxx Xxxxxx office
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47,848.55 | ||||
Audiovisual
equipment
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33,408.74 | ||||
Grand
Total - all at 0xx
xxxxx, 00 Xxxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx
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151,631.49 | ||||
Seller: Xxxxxx
Xxxxxxx Australia Finance Limited
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Asset
Description
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Purchase
Price
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Purchaser: MSCI
Australia Pty Limited
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Computer
Equipment: - 4 PCs
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9,020.11 | |||
Furniture
in Sydney office of MSCI on Xxxxx 0, 0 Xxxxxxxxxxx
Xxxxxx
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12,403.41 | ||||
PBX
in the Sydney office
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41,412.01 | ||||
Grand
Total - all at Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxx
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62,835.53 |
EXHIBIT
A
XXXX
OF SALE AND ASSIGNMENT AGREEMENT
THIS XXXX
OF SALE AND ASSIGNMENT (this “Xxxx of Sale”) dated as of
July 31, 2008 between Xxxxxx Xxxxxxx & Co. Incorporated, a Delaware
corporation (“Seller”),
MSCI INC., a Delaware corporation (“Buyer”) and the other persons
listed on the signature pages hereto (together with Seller, the “Seller
Entities”).
WHEREAS, Buyer and Seller have
concurrently herewith consummated the purchase by Buyer of the Purchased Assets
pursuant to the terms and conditions of the Asset Purchase Agreement dated July
22, 2008 between Buyer and Seller, (the “Asset Purchase Agreement”;
terms defined in the Asset Purchase Agreement and not otherwise defined herein
being used herein as therein defined);
NOW, THEREFORE, in consideration of the
sale of the Purchased Assets and in accordance with the terms of the Asset
Purchase Agreement, the parties hereto agree as follows:
1. (a)
Each Seller Entity does hereby, effective as of the Closing, convey, sell,
transfer, grant, assign and deliver unto Buyer and its successors and assigns,
forever, all of such Seller Entity’s right, title and interest in, to and under
the Purchased Assets listed opposite such Seller Entity’s name on Schedule 2.01
of the Asset Purchase Agreement, subject to the terms and conditions of the
Asset Purchase Agreement.
(b) Buyer
does hereby accept all the right, title and interest of each Seller Entity in,
to and under all of such Purchased Assets (except as aforesaid).
2. This
Xxxx of Sale is subject to all of the terms, conditions and limitations set
forth in the Asset Purchase Agreement. All the Purchased Assets,
sold, transferred, assigned, conveyed and delivered hereunder are being sold,
transferred, assigned, conveyed and delivered to Buyer in an “AS IS, WHERE IS
CONDITION AND WITH ALL FAULTS” on the date hereof, subject to all latent and
patent defects. THE SELLER ENTITIES MAKE NO REPRESENTATIONS OR
WARRANTIES AS TO THE PURCHASED ASSETS, INCLUDING AS TO THEIR PHYSICAL CONDITION,
USABILITY, MERCHANTABILITY OR FITNESS FOR ANY PURPOSE.
A-1
3. In
the event that any provision of this Xxxx of Sale is constructed to conflict
with a provision in the Asset Purchase Agreement, the provision in the Asset
Purchase Agreement shall be deemed to be controlling.
4. This
Xxxx of Sale shall be governed by and construed in accordance with the law of
the State of New York, without regard to the conflicts of law rules of such
state
5. This
Xxxx of Sale may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the
same instrument.
[signatures
appear on following page]
A-2
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By:
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Name:
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Title:
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XXXXXX
XXXXXXX & CO. INCORPORATED
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By:
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Name:
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Title:
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[THE OTHER SELLER ENTITIES] |
[signature
page to Xxxx of Sale]
A-3