Sale and Purchase of Assets. (a) Upon the terms, subject to the conditions and in reliance upon the representations and warranties herein set forth, the Seller shall, sell, convey, transfer, assign and deliver (collectively, “Transfer”) to the Buyer, and the Buyer shall purchase and acquire from the Seller: (i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”); (ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”), (iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”), (iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and (v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so). (b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”). (c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts. (d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller. (e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e).
Appears in 2 contracts
Sources: Transfer and Purchase Agreement (Pma Capital Corp), Transfer and Purchase Agreement (Pma Capital Corp)
Sale and Purchase of Assets. (a) Upon Subject to Section 2.2, Section 2.11, Section 2.12, Section 5.5 and Section 5.16, upon the terms, terms and subject to the conditions and in reliance upon of this Agreement, at the representations and warranties herein set forthClosing, the Seller shall, and shall cause the other Asset Selling Entities to, sell, transfer, convey, transfer, assign and deliver (collectively, “Transfer”) to the BuyerPurchaser, and the Buyer Purchaser shall purchase and acquire from Seller and the other Asset Selling Entities (the “Sale”), all of Seller:’s and the other Asset Selling Entities’ right, title and interest, free and clear of any Liens (other than Permitted Liens), in and to the following assets, properties and rights (tangible and intangible and wherever located), as such assets, properties and rights shall exist at the Closing (such assets, collectively, the “Transferred Assets”):
(a) all of the following Intellectual Property: (i) the Seller’s rightpatents and patent applications set forth on Schedule 2.1(a)(i) to this Agreement, title together with any extensions, supplemental protection certificates, reexaminations, reissues, renewals, divisions and interest in continuations and foreign counterparts claiming priority to any of the renewals foregoing (the “Renewal RightsTransferred Patents”); (ii) the Marks and applications for the registration of Marks set forth on Schedule 2.1(a)(ii) to this Agreement, including all translations, adaptations, and combinations thereof, and all common law rights, registrations, applications for registration thereof, together with any extensions and renewals thereof, and together with the goodwill associated with any of the foregoing (the “Transferred Trademarks”); (iii) the copyright registrations set forth on Schedule 2.1(a)(iii) to this Agreement (the “Transferred Copyrights”); (iv) the Internet domain name registrations set forth on Schedule 2.1(a)(iv) to this Agreement (the “Transferred Domain Names”); and (v) the Product Technology Related to the Business (the “Transferred Product Technology”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance ContractsTransferred IP”);
(iib) at all Contracts Related to the option Business, including the Contracts set forth on Schedule 2.1(b) to this Agreement (the “Transferred Contracts”) and any rights or claims arising thereunder;
(c) all machinery, equipment, office equipment and all other items of tangible personal property of any Asset Selling Entity that is Related to the BuyerBusiness (other than any such items set forth on Schedule 2.2(t) to this Agreement and the Swiss Manufacturing Facilities Tangible Personal Property, in each case, which may be exercised by are, for the Buyer from time avoidance of doubt, Excluded Assets);
(d) subject to time after the Closing Sections 5.1(b) and until the expiration or termination date of a Reinsurance Contract5.1(f), all books and records (financial, laboratory and otherwise), customer and supplier lists, billing records, distribution lists, manuals, safety data, clinical trial data and patient data and related programs (including patient support and market research programs and related databases), Transferred IP Records, any specifications, data and other documentation constituting or concerning Product Technology, and all Program complaint files and adverse event files in the safety and quality databases of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder Seller or its Affiliates (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets Books and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional AssetsRecords”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, andin each case, to the extent owned by the Seller and transferable without the consent of any third partyrelating to, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together held for use with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller used in connection with the Program Business (the “Transferred Books and Records”), subject to the confidentiality and use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts restriction obligations hereunder to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the constituting Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, Confidential Information; provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the (A) Seller and Associated Industries Insurance Company are parties prior its Affiliates shall be entitled to December 19keep copies thereof for operational, 2003legal, Tax, regulatory or record-keeping purposes or in order to comply with applicable Laws, Seller’s or its Affiliates’ internal policies and procedures or any applicable contractual or other similar obligations, subject to the confidentiality and use restriction obligations hereunder, (B) Transferred Books and Records shall not include (in each case, w) the “Outside Date”) to novate or otherwise assume Transferred Business Employee Records (the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates treatment of the Buyer and who may offer finite reinsurance business as which is set forth in Section 1.10. The Buyer will waive this right only by notice in writing 2.1(d) below), (x) any Books and Records to the extent exclusively relating to, exclusively held for use with or exclusively used in connection with any Excluded Asset or Excluded Liability, (y) any Books and Records the transfer of which would be prohibited by applicable Law, and (z) any emails other than those sent or received by the Transferred Employees, (C) Seller and such notice its Affiliates shall only apply not be required to deliver any Transferred Books and Records that are not then in respect Seller’s or any of the individual Reinsurance Contract referred its Affiliates’ possession or control, and (D) Seller shall not be required to in such notice. The Seller acknowledges that as part of any such novation provide, or assumptioncause to be provided, the Buyer may amend Transferred Books and Records in any form or medium other than the terms and conditions of any Novated Contract form or medium in its discretion, subject to agreement with the Reinsuredwhich they were originally generated or maintained; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with extent within a reasonable period of time following the terms Closing (but no later than the eighteen (18) month anniversary of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(eClosing Date), Seller or any of its Affiliates become aware of, or Purchaser or any of its Affiliates make any specific request in writing to Seller to deliver any Transferred Books and Records which were not delivered to Purchaser at the Closing, Seller shall, or shall not cancelcause its Affiliates to, commute, novate or otherwise alter or amend subject to the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as other limitations set forth in this Section 1.2(eAgreement, deliver such Transferred Books and Records to Purchaser as promptly as reasonably practicable thereafter (such delivery mechanism, the “Post-Closing Delivery Mechanism”);
(e) subject to Sections 5.1(b) and 5.1(f), any employee or personnel files, in each case, to the extent exclusively relating to any Transferred Employee (collectively, the “Transferred Business Employee Records”); provided, that (A) Seller and its Affiliates shall be entitled to keep copies thereof for operational, legal, Tax, regulatory or record-keeping purposes or in order to comply with applicable Laws, Seller’s or its Affiliates’ internal policies and procedures or any applicable contractual or other similar obligations, subject to the confidentiality obligations hereunder, (B) the Transferred Business Employee Records shall not include (x) any files the transfer of which would be prohibited by applicable Law, and (by) emails other than those sent or received by the applicable Outside DateTransferred Employees, (C) Seller and its Affiliates shall not be required to deliver any Transferred Business Employee Records that are not in Seller’s or any of its Affiliates’ possession or control (subject to the Post-Closing Delivery Mechanism with respect to any Transferred Business Employee Records which are not delivered as of the Closing) and (D) Seller shall not be obligated required to comply provide, or cause to be provided, the Transferred Business Employee Records in any form or medium other than the form or medium in which they were originally generated or maintained;
(f) all Product Inventory;
(g) subject to Section 5.20, the Transferred Registrations, all Variant Registrations and all other Business Permits;
(h) subject to Sections 5.1(b) and (d) and to any alternative plan for transferring specific materials in a given territory as is expressly contemplated in the Transition Services Agreement or the Services Plan prepared thereunder, all advertising, marketing, sales and promotional materials (including all coupons and sample packets) Related to the Business (collectively, the “Transferred Marketing Materials”); provided, however, that Seller and its Affiliates shall not be required to deliver any Transferred Marketing Materials that are not in Seller’s or any of its Affiliates’ possession or control;
(i) all prepaid expenses and deposits and refunds to the extent related to the Program Business (other than (i) for the avoidance of doubt, cash from customer prepayments, (ii) prepaid insurance with respect to any insurance policies not transferring to Purchaser in connection with the transactions contemplated by this Agreement (clause (i) and (ii), collectively, the “Excluded Prepaid Expenses”) and (iii) for the avoidance of doubt, those described by Section 2.2(e));
(j) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables to the extent related to the Program Business, in each case, to the extent relating to or arising out of the operation of the Program Business from and after the Closing;
(k) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, the Benefit Plans set forth on Schedule 2.1(k) to this Agreement, including any Benefit Plans that will automatically transfer under applicable Law (provided, that such Benefit Plans that will automatically transfer under applicable Law may be excluded from Schedule 2.1(k) if they are immaterial and not set forth in writing) (collectively, the “Assumed Business Employee Plans”);
(l) all Actions available to or being pursued by any Asset Selling Entity to the extent relating to or arising out of the conduct of the Program Business or the operation of the Transferred Assets, whether arising by way of counterclaim or otherwise, except, for the avoidance of doubt, those described in Section 2.2(s);
(m) all proceeds under any of the Asset Selling Entities’ third-party insurance policies written prior to the Closing to the extent related to (A) the damage or destruction of any of the Transferred Assets from and after the date hereof and prior to the Closing that is, or would have been but for such damage or destruction, included in the Transferred Assets or (B) an Assumed Liability, other than, in the case of each of clause (A) and (B), any such proceeds in respect of Product Inventory;
(n) all assets, properties and rights described on Schedule 2.1(n) to this Agreement; and
(o) without expanding or otherwise modifying any of the assets, properties or rights contemplated by clauses (a) through (n) of this Section 1.2(e)2.1, all other assets, properties and rights that are Related to the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Amgen Inc), Asset Purchase Agreement (Celgene Corp /De/)
Sale and Purchase of Assets. (a) Upon the terms, subject Subject to the terms and conditions and in reliance upon of this Agreement, at the representations and warranties herein set forthClosing, the applicable Seller shall, shall sell, conveyassign, transfer, assign deliver and deliver (collectively, “Transfer”) convey to the St. Maarten Buyer or the U.S. Buyer, as applicable, and the St. Maarten Buyer shall purchase or the U.S. Buyer, as applicable, will purchase, acquire and acquire accept from the Seller:
(i) applicable Seller all of the applicable Seller’s right, title and interest in the renewals following assets (but excluding the Excluded Assets) (collectively, the “Renewal RightsSeller Assets”), free and clear of all Liens (other than Permitted Liens):
(i) all Receivables held by the Sellers, including all Receivables reflected on the Closing Statement;
(ii) all Transferred Intellectual Property, including all Transferred Intellectual Property set forth in Section 4.21(a) of the in-force reinsurance policiesDisclosure Schedule, contractsalong with all income, bindersroyalties, endorsements damages and extensions thereto issued payments due or written by the Seller which comprise the Business payable as of the Closing Date or thereafter (including damages and which are listed payments for past, present or future infringements or misappropriations thereof, the right to s▇▇ and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world);
(iii) all rights under the Contracts set forth on Schedule I 1.1(a)(iii) attached hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Purchased Contracts”);
(iiiv) at the option Seller Transferred Owned Real Property;
(v) the Seller Transferred Leased Real Property (and the leases related thereto);
(vi) all improvements and all machinery, equipment, fixtures and trade fixtures;
(vii) all furniture, office supplies, production supplies and any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property of any kind;
(viii) all prepayments, prepaid expenses and deposits (other than those related to Excluded Assets or Retained Liabilities) and advances (including employee advances), including all prepayments, prepaid expenses and deposits and advances reflected on the BuyerClosing Statement;
(ix) all claims, which may be exercised refunds, credits, causes of action, rights of recovery and rights of set-off of any kind (other than those related to Excluded Assets or Retained Liabilities), whether arising by way of counterclaim or otherwise;
(x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Buyer Business;
(xi) all rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
(xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
(xiii) all insurance benefits, including rights and proceeds, arising from time or relating to time after the Closing and until Business, the expiration Purchased Assets or termination date of a Reinsurance Contract, the Assumed Liabilities (including any such benefits arising from or related to the Insurance Policies);
(xiv) all Benefit Plans and all of the Seller’s rightrights and powers of the Sellers under and with respect to such Benefit Plans, title and interest in any and to each Reinsurance trust, insurance Contract, ;subject annuity Contract, funding arrangement, recordkeeping arrangement or other arrangement with respect thereto which are to the Seller’s obligations be transferred to, and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld assumed by the ceding insurerBuyers, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract accordance with Section 5.12 (the “Reserve Transfer AmountTransferred Benefit Plans”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that it is understood and agreed between the Buyer Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable be transferred to the Seller in accordance with Buyers and will be assumed by the terms of the Novated Contract without giving effect to such amendmentBuyers;
(xv) all Permits, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as including all Permits set forth in this Section 1.2(e4.18 of the Disclosure Schedule (the “Transferred Permits”);
(xvi) all goodwill of the Business as a going concern;
(xvii) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (bincluding pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Transferred Intellectual Property (collectively, “Books and Records”); and
(xviii) all other properties, assets, rights and interests of any kind, whether tangible or intangible, real or personal, of a type not described in the applicable Outside Date, foregoing clauses (i)-(xvii) that are owned by the Seller shall Sellers or in which the Sellers have an interest and which are not be obligated to comply with this Section 1.2(e)Excluded Assets.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Devry Inc), Asset Purchase Agreement (Devry Inc)
Sale and Purchase of Assets. (a) Upon At the termsClosing (as defined herein), subject to the conditions and in reliance upon the representations and warranties herein set forth, the Seller shall, shall sell, convey, transfer, assign and deliver (collectively, “Transfer”) to the Buyer, and the Buyer shall purchase purchase, assume and acquire accept from the Seller:
(i) the Seller’s right, title free and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies clear of all of the Seller’s original statistical liens and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above)encumbrances, all right, title and interest in and to all other assets of the assets, properties and rights of Seller will remain relating to the property of US Business (collectively, the “Assets”), including without limitation the following: DB1/63152084.9
(i) the sponsor contracts, agreements and commitments set forth on Schedule 1(a)(i) hereto (the “Sponsor Contracts”);
(ii) the vendor contracts, agreements and commitments set forth on Schedule 1(a)(ii) hereto;
(iii) the non-disclosure and other contracts, agreements and commitments relating to the US Business set forth on Schedule 1(a)(iii) hereto;
(iv) all existing records and data relating to the Sponsor Contracts and the underlying studies relating thereto;
(v) the outstanding proposals or solicitations to enter into work as set forth on Schedule 1(a)(v) hereto (the “Proposed Contracts”);
(vi) other than the Seller.
’s standard operating procedures (e) For greater certainty“SOPs”), in connection with paragraph 1.2(a)(ii) above, all policies and procedures with respect to any Reinsurance Contractthe US Business, as set forth on Schedule 1(a)(vi);
(vii) the computer hardware owned by Seller, and computer programs and software owned or licensed by the Seller, relating to the US Business all as set forth on Schedule 1(a)(vii);
(viii) all contracts, agreements and commitments by which Seller hereby grants leases equipment relating to the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract US Business, as set forth on Schedule 1(a)(viii);
(except, ix) all office furniture owned by Seller and used in the case of US Business;
(x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business all current assets as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller on Schedule 1(a)(x) hereto;
(xi) any trademarks, tradenames and such notice shall only apply in respect other intellectual property set forth on Schedule 1(a)(xi); and
(xii) any goodwill of the individual Reinsurance Contract referred to in such noticeUS Business. The Seller acknowledges that as part of any such novation or assumptionNotwithstanding the foregoing, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer Assets shall not amend include any Novated Contract if the effect SOPs, accounts receivable, cash or any other assets, properties or rights of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)listed on Exhibit “B” hereto.
Appears in 1 contract
Sale and Purchase of Assets. (a) Upon the terms, subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forthhereof, the Seller shall, DWBIT will sell, convey, transferassign, assign transfer and deliver (collectively, “Transfer”) to National Grid at the BuyerClosing, and National Grid will purchase, accept and assume at the Buyer shall purchase Closing, good, clear and acquire from the Sellermarketable title and all rights and interests (except as expressly set forth in Schedule 2) in and to:
(i) the Seller’s rightreal estate options and grants for the real property on which the Transmission Facilities are expected to be constructed, title and interest which are listed in the renewals Part 1 of Schedule 2 hereto (the “Renewal Property Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option Permits listed in Part 2 of Schedule 2 hereto (including any additions thereto pursuant to Section 2(b)) (the Buyer“Transferred Permits”), which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and are all of the SellerPermits other than the National Grid Permits and the RI DOT Permits (each defined below);
(iii) all of ▇▇▇▇▇’s right, title and interest in in, to and to each Reinsurance Contract, under the RIDOT Permits;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned all files, documents and data (electronic or otherwise) in existence as a result of preliminary engineering and surveys developed by DWBIT and its affiliates in connection with the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date Transmission Facilities (the “Additional AssetsEngineering Documents”), andincluding without limitation those listed in Part 3 of Schedule 2 hereto;
(v) all of the Seller’s original statistical environmental and sales data, records, papers, documents, books, memoranda, files, and, archaeological reports and documents related to the extent owned by Transmission Facilities and the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights Sites (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “AssetsReports”), provided, that including without limitation those listed in the event Part 4 of Schedule 2 hereto;
(vi) all request for proposal responses (“RFP Responses”) and any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller other procurement information in connection with the use Transmission Facilities, including without limitation those described or identified in Part 5 of such Record Schedule 2 hereto; and
(above any license fees previously paid by the Sellervii) will be borne by the Buyer certain other applications, documents and data listed in Part 6 of Schedule 2 (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so“Other Information”).
(b) Notwithstanding DWBIT shall update Schedule 2 as necessary to reflect changes between the foregoing, the Buyer date hereof and the Seller agree and acknowledge Closing Date (including the addition of any municipal or other local Permit that National Grid may determine in its reasonable discretion is required in order to construct the Buyer will not acquire or assume any rightTransmission Facilities, title or interest in or accordance with Section 8(t)), which changes shall be provided to or liability under any Novated Contract or Reserve Transfer Amount until such time as National Grid at least fourteen (i14) the Buyer has provided written notice days prior to the Seller Closing Date; provided that such updated Schedule 2 must be acceptable to National Grid in its sole discretion. If DWBIT fails to update Schedule 2 or notify National Grid that Schedule 2 remains accurate as of the Buyer’s exercise of Closing Date at least seven (7) days prior to the Closing Date, or National Grid objects, in its sole discretion, to Schedule 2 as updated by DWBIT, National Grid shall have the right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”)terminate this Agreement with no further obligations hereunder.
(c) From The Assets shall be sold and conveyed to National Grid free and clear of all mortgages, security interests, charges, encumbrances, liens, assessments, covenants, claims, conditions (other than those explicitly included in the Closing Date until December 31Transferred Permits), 2004title defects, the Buyer shall have reasonable access during normal business hours to the Records pledges, encroachments and to the employees burdens of the Seller every kind or its affiliates for purposes of conducting its review of the Reinsurance Contractsnature whatsoever (collectively, “Liens”), other than Permit Encumbrances.
(d) Other than the Assets (subject DWBIT shall be solely responsible for, and agrees to Section 1.2(b) above)pay, all rightsales, title income, use, transfer and interest in and to all other assets Taxes, if any, arising from the transfer of the Seller will remain the property of the SellerAssets.
(e) For greater certaintyAnything else in this Agreement, the Cooperation Agreement or any of the Transfer Documents notwithstanding, National Grid shall not assume, and shall not be deemed to have assumed or otherwise become liable for, any liability, claim or obligation of DWBIT whatsoever, known or unknown, accrued or contingent, except solely for those liabilities and obligations arising after the Closing under or in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)Assets.
Appears in 1 contract
Sale and Purchase of Assets. Subject to the terms and conditions hereof and excluding (a) Upon the termsExcluded Assets and (b) the properties, subject assets and rights of the Target Companies (which will be acquired by Acquiror or the Buyers pursuant to the conditions acquisition of the Shares as described herein), Weatherford will, and in reliance upon will cause its Affiliates (other than the representations and warranties herein set forthTarget Companies), including the Seller shallAsset Sellers to, sell, transfer, convey, transfer, assign and deliver to Acquiror (collectively, “Transfer”) to or the BuyerBuyers), and Acquiror will (or will cause the Buyer shall Buyers to) purchase and acquire from the Seller:
Weatherford and its Affiliates (i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) aboveTarget Companies), all right, title and interest of such Persons in and to (i) the assets set forth on Schedule 1.1(i) hereto (the “Specified Assets”), (ii) subject to Section 2.8, the Contracts set forth on Schedule 1.1(ii) (the “Assigned Contracts”) (which Schedule 1.1(ii) shall be updated for Contracts (other than Unscheduled Contracts) entered into by Weatherford or the Asset Sellers primarily related to the Business after the date hereof and on or prior to the Closing Date not in violation of Section 4.2(b) of this Agreement), (iii) subject to Section 1.1(v) below, the assets reflected under the caption “Assets” on the Reference Balance Sheet (the “Balance Sheet Assets”), (iv) all other properties, assets and rights of every nature, kind and description, tangible and intangible (including goodwill of the Seller will remain Business), whether real, personal or mixed, whether accrued, contingent or otherwise and whether now existing or hereinafter acquired, primarily used or held for use in connection with the property Business as the same may exist as of the Seller.Closing Date (the “Unscheduled Assets”), (v) all assets into which the Balance Sheet Assets and Unscheduled Assets have been converted between the Balance Sheet Date and the Closing Date, which conversions shall occur only in the Ordinary Course of Business or as directed by Acquiror in writing, (vi) all assets which have been acquired by the Asset Sellers for the primary use of the Business between the Balance Sheet Date and the Closing Date, and (vii) any assets primarily related to the Business located on any Real Property (the assets described by this Section 1.1 as being sold, transferred, conveyed, assigned and delivered to Acquiror (or the Buyers), collectively being referred to herein as the “Assets”), including all those items in the following categories that otherwise conform to the definition of the term “Assets”:
(a) all machinery, equipment, furniture, furnishings, vehicles, tools, office equipment, supplies, spare, replacement and component parts, production equipment, testing equipment, computer hardware, and similar property;
(b) raw materials, work in process, finished products, goods, spare parts, replacement and component parts, manufacturing supplies and any other items of a kind that are customarily included in the inventory balances of the Business (collectively, “Inventories”);
(c) all rights (including any and all Intellectual Property rights) to any products or assets under research or development prior to the Closing;
(d) subject to Section 2.8, all rights under all contracts, arrangements, licenses, leases and other agreements, including the Assigned Contracts, the Unscheduled Contracts and any right to receive payment for products sold or services rendered, and to receive goods and services, pursuant to such agreements and to assert claims and take other rightful actions in respect of breaches, defaults and other violations of such contracts, arrangements, licenses, leases and other agreements and otherwise;
(e) For greater certaintyall credits, prepaid expenses, deferred charges, advance payments, security deposits and prepaid items;
(f) all Intellectual Property and all rights thereunder or in connection respect thereof, including rights to sue for ▇▇▇ remedies against past, present and future infringements or violations thereof, and rights of priority and protection of interests therein under the laws of any jurisdiction worldwide and all tangible embodiments thereof (together with paragraph 1.2(a)(iiall Intellectual Property rights included in the other clauses of this Section 1.1, “Intellectual Property Assets”);
(g) aboveall Product Regulatory Data and Product Regulatory Filings to the extent related to the Business;
(h) all of the following, including electronic records, wherever located, to the extent related to the Business, any Asset or Assumed Liability: books and records, advertising materials, catalogues, price lists, mailing lists, lists of customers, distribution lists, production data, sales and promotional materials, purchasing materials, personnel records with respect to Transferred Employees who were employed by the Asset Sellers or any other Weatherford Affiliate (other than the Target Companies) on the Closing Date (to the extent transfer is permitted by applicable Law), manufacturing and quality control records and procedures, blueprints, research and development files, records, financial books and records, data and laboratory books, and Intellectual Property disclosures and open sales order files (collectively, the “Records”).
(i) to the extent their transfer is permitted by applicable Law, all Consents and Governmental Approvals, including all applications therefor;
(j) all rights to Proceedings of any nature available to or being pursued with respect to the Business or the ownership, use, function or value of any Asset, whether arising by way of counterclaim or otherwise (other than any rights with respect to the Proceeding styled Weatherf▇▇▇ ▇▇▇▇▇▇ Products Ltd. v. Hydropath Holding Ltd., which shall constitute an Excluded Asset);
(k) all guarantees, warranties, indemnities and similar rights in favor (i) of the Asset Sellers with respect to any Reinsurance Contract, Asset or (ii) of Weatherford and its Affiliates (other than the Seller hereby grants Target Companies) to the Buyer extent related to the exclusive right from Business;
(l) all rights of Weatherford or its Affiliates to the extent associated with any Assumed Liability;
(m) all current assets to the extent included in the Closing Date until 120 days after the expiration of such Reinsurance Contract Working Capital Balance;
(except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (yn) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation Real Property of the Reinsurance Contract to which Asset Sellers or any other Weatherford Affiliate (other than the Seller and Associated Industries Insurance Company Target Companies), including the real property set forth on Schedule 1.1(n); and
(o) all other assets that are parties prior to December 19, 2003) (in each case, primarily used or held for use by the “Outside Date”) to novate Business. The Assets shall be transferred or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing conveyed to the Seller Buyers free and such notice shall clear of all Liens and other obligations excepting only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms Assumed Liabilities and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)Permitted Liens.
Appears in 1 contract
Sources: Acquisition Agreement (Weatherford International PLC)
Sale and Purchase of Assets. (a) Upon the termsThe Seller hereby sells, subject to the conditions assigns, transfers and in reliance upon the representations and warranties herein set forth, the Seller shall, sell, convey, transfer, assign and deliver (collectively, “Transfer”) conveys to the Buyer, and the Buyer shall purchase purchases, acquires and acquire accepts from the Seller:
(i) the Seller’s right, title free and interest in the renewals (the “Renewal Rights”) clear of the in-force reinsurance policiesall Encumbrances other than Permitted Encumbrances, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s rightassets of every kind and description (other than the Excluded Assets) used, title and interest owned, leased or otherwise held by or for the benefit of the Seller in and to each Reinsurance Contractthe operation of, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectivelyor otherwise relating specifically to, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured Business on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Purchased Assets”), andincluding the following assets of the Seller (other than the Excluded Assets):
(va) all All equipment, fixtures, furniture, office equipment, computer hardware, inventory, supplies, and other items of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and softwaretangible personal property, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by relating to the Business and located at the Offices (the “Tangible Personal Property”), including the personal property set forth on Schedule 1.1(a);
(b) All trade and other accounts receivable and other Indebtedness owing to the Seller and transferable without the consent of (including any third partyfuture rights to commissions relating to pre-closing client events, all of the Seller’s pricing and financial models, electronic databases and files and softwarewhether related to commissions on any rooms booked directly through hotels or otherwise), in each case pertaining to the Renewal Rights extent arising from the Business, including the benefit of all collateral, security, guaranties, and similar undertakings received or held in connection therewith and any claim, remedy or other right related to the foregoing (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “AssetsAccounts Receivable”), provided, that in including the event any such Record is not so owned receivables and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date Indebtedness set forth on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do soSchedule 1.1(b).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).;
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours All leases and subleases of real property related to the Records Offices set forth on Schedule 1.1(c) as to which the Seller is the lessor or sublessor and to the employees all leases and subleases of real property of the Offices set forth on Schedule 1.1(c) as to which the Seller is the lessee or its affiliates for purposes of conducting its review of sublessee, together with any options to purchase the Reinsurance Contracts.underlying property and leasehold improvements thereon, and in each case all other rights, subleases, licenses, permits, deposits and profits appurtenant to or related to such leases and subleases;
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title All rights and interest interests in and to all other assets of the Seller will remain the property of the Seller.Contracts set forth on Schedule 1.1(d);
(e) For greater certaintyAll Intellectual Property set forth on Schedule 1.1(e);
(f) All business, employee and financial records, books, ledgers, files, correspondence, documents, lists, studies and reports, including the accounting system software of the Seller (subject to the Buyer obtaining the required licenses to use such software), customer lists, supplier lists and equipment repair, maintenance, service, personnel, payroll, employee benefit, quality control and insurance records, whether written, electronically stored or otherwise recorded, in connection with paragraph 1.2(a)(iieach case to the extent relating to the Business (the “Books and Records”);
(g) aboveAll goodwill and all sales, with respect to any Reinsurance Contractadvertising, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (exceptpromotional and marketing information and materials, in each case to the case of extent relating to the Business;
(xh) Reinsurance Contracts which expire on December 31All telephone, 2003fax and pager numbers, until 60 days after domain names, URLs and e-mail addresses assigned to the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance CompanySeller, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each casecase to the extent relating to the Business, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as including those set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsuredon Schedule 1.1(h); provided, however, that such domain names and URLs which contain the Buyer shall not amend any Novated Contract if name “Ambassadors” may only be used during the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as period set forth in this Section 1.2(e)5.10;
(i) All rights of the Seller to causes of action, lawsuits, judgments, claims and (b) demands of any nature and all counterclaims, rights of setoff, rights of indemnification and affirmative defenses to any claims that may be brought against the applicable Outside DateBuyer by third parties, in each case to the extent arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities;
(j) All rights to refunds from customers and suppliers, all prepaid expenses and deposits and all rights to condemnation proceeds, in each case to the extent arising from the Business; and
(k) All other properties and assets relating to the Business to the extent the Seller shall has any rights thereto or interests therein, whether a present or future interest, an inchoate right or otherwise and whether such properties or assets are tangible or intangible and whether or not be obligated to comply with this Section 1.2(e)of a type falling within any of the categories of assets or properties described above.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ambassadors International Inc)
Sale and Purchase of Assets. (a) Upon On the terms, terms and subject to the conditions and in reliance upon the representations and warranties herein set forthexpressed, the Seller shall, agrees to sell, convey, transfer, assign and deliver (collectively, “Transfer”) to the Buyer, and the Buyer shall purchase agrees to purchase, acquire and acquire accept from the Seller:
(i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all 's right, title and interest in and to all other of the following assets used in the Business (the "Purchased Assets"):
(a) all assets of the Business pertaining to the store operations of Seller will remain the property of the Seller.
at its two locations: (e1) For greater certaintyStore #15 in Irvington, New Jersey; and (2) Store #31 in connection with paragraph 1.2(a)(ii) aboveLittle Ferry, with respect to any Reinsurance ContractNew Jersey (collectively, the Seller hereby grants "Stores"), including all licensed departments, store fixtures, and other assets inherent to operating the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract Stores (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each casecollectively, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured"Store Operations"); provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and and
(b) all assets included in the applicable Outside Datebalance sheet dated as of March 28, 1998 (the "March Balance Sheet"), a copy of which is attached hereto as Schedule 1.1 and incorporated herein by reference and all additions to such assets from March 28, 1998 through the Effective Time, including, without limitation, Seller's right, title, and interest in the Lease, dated September 13, 1963, between Seller, as lessee and Tamb▇▇▇▇▇▇ ▇▇▇perties, Inc., as lessor (which lease together with all amendments and modifications is hereinafter called the "Little Ferry Lease") and all license agreements pertaining to the Store Operations and from which Seller shall not be obligated derives its revenues relating to comply with this Section 1.2(ethe Business (the "License Agreements"), a list of the License Agreements is attached hereto as Schedule 1.1(b) and incorporated herein by reference.
Appears in 1 contract
Sources: Asset Purchase Agreement (Value City Department Stores Inc /Oh)
Sale and Purchase of Assets. (a) Upon Subject to Section 5.5, upon the terms, terms and subject to the conditions and in reliance upon of this Agreement, at the representations and warranties herein set forthClosing, concurrently with the consummation of the Equity Sale, Seller shall, or shall cause the other Asset Selling Entities to, sell, transfer, convey, transfer, assign and deliver (collectively, “Transfer”) to the BuyerPurchaser, and the Buyer Purchaser shall purchase and acquire from the Seller:
(i) the Seller’s right, title and interest in the renewals Asset Selling Entities (the “Renewal RightsAsset Sale”) of ; and together with the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectivelyEquity Sale, the “Reinsurance ContractsSale”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s Asset Selling Entities’ right, title and interest in and to each Reinsurance Contractthe following, ;subject as such assets, properties and rights shall exist on the Closing Date free and clear of any Liens (other than Permitted Liens) (but, for the avoidance of doubt, excluding the Excluded Assets) (clauses (a) through (g) herein collectively referred to as the “Transferred Assets”):
(a) all of the assets, properties and rights primarily related to, primarily used or primarily held for use in the conduct of, the Business (other than with respect to the Seller’s obligations assets, properties and liabilities thereunder rights described in clauses (eachb) through (g), a which shall constitute Transferred Assets to the extent set forth therein), including:
(i) All Intellectual Property that is primarily related to, primarily used or primarily held for use in the conduct of the Business by any Seller Person (the “Novated Contract,” Transferred IP”), including (i) the patents and collectivelypatent applications set forth on Section 3.18(a) of the Seller Disclosure Schedule (the “Transferred Patents”), (ii) the registered Marks and applications for the registration of Marks set forth on Section 3.18(a) of the Seller Disclosure Schedule, (the “Transferred Trademarks”), together with all goodwill with respect thereto, (iii) the copyright registrations set forth on Section 3.18(a) of the Seller Disclosure Schedule (the “Transferred Copyrights”), (iv) the registered domain names set forth on Section 3.18(a) of the Seller Disclosure Schedule (the “Transferred Domain Names”) and (v) the copyright rights in the software owned by any Acquired Group Company that is primarily related to, primarily used or primarily held for the use in the Business, including the VentSim and Uptime software (such software, the “Novated Proprietary Software”);
(ii) Subject to Section 5.5, all Contracts to which any Seller Person is a party primarily related to, primarily used or primarily held for use in the Business, other than, for the avoidance of doubt, the Excluded Contracts (the “Transferred Contracts”),;
(iii) such readily-marketable liquid assets orAll machinery, as fixtures, furniture, supplies, accessories, materials, equipment, office equipment, computers, telephones and all other items of tangible personal property of any Seller Person, that is primarily related to, primarily used primarily held for use in the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value conduct of the assets Business (other than the machinery, equipment and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”other items listed on Schedule V),;
(iv) such additional assets owned by the Seller as the Buyer Copies of any and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”)all documents, and
(v) all of the Seller’s original statistical and sales data, recordsinstruments, papers, documents, books, memorandarecords (other than Tax Returns and other books and records related to Taxes (other than Tax Returns and other books and records solely related to Taxes of the Acquired Group Companies, filesand excluding any Combined Tax Returns)), andbooks of account, files and data (including customer and supplier lists, and repair and performance records), catalogs, brochures, sales literature, promotional materials, certificates and other documents to the extent primarily related to the Business and in the possession or control of a Seller Person, other than (A) any books, records or other materials that any Seller Person is required by Law to retain (copies of which, to the extent owned permitted by the Seller Law, will be made available to Purchaser upon Purchaser’s reasonable request), (B) personnel and transferable without the consent of employment records for employees and former employees (x) who are not Transferred Employees and/or (y) which cannot be transferred under applicable Law (C) any third partybooks, all records or other materials that may be located in a facility of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, Business to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining not primarily related to the Renewal Rights (the Business ( “Transferred Books and Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has ; provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) abovethat, with respect to any Reinsurance Contractsuch Transferred Books and Records, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration shall be permitted to keep (1) one copy of such Reinsurance Contract Transferred Books and Records to the extent required to demonstrate compliance with applicable Law or pursuant to internal compliance procedures, (except, 2) copies of such Transferred Books and Records to the extent related to any Excluded Assets and (3) such Transferred Books and Records in the case form of so-called “back-up” electronic tapes in the ordinary course of business consistent with past practice.
(v) All Permits primarily relating to the conduct of the Business;
(b) All prepaid expenses, deposits, advance payments, deferred charges, rights of offset, refunds, and credits and claims for refunds to the extent related to, used in, arising from or held for use in the conduct of the Business (other than (x) Reinsurance Contracts which expire on December 31for the avoidance of doubt, 2003, until 60 days after the expiration of such contracts cash from customer prepayments and (y) prepaid insurance with respect to any insurance policies not transferring to Purchaser in connection with the Reinsurance Contracts with Nova Casualty Company transactions contemplated by this Agreement);
(c) All accounts receivable, notes receivable, rebates receivable, trade receivables and Associated Industries Insurance Companyother miscellaneous receivables, until December 31to the extent related to, 2003, provided, that used in or held for use in the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation conduct of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) Business (in each case, other than from Seller or other Seller Persons);
(d) All guarantees, warranties, indemnities and similar rights in favor of any Seller Person to the “Outside Date”extent related to any Transferred Asset;
(e) Any and all claims, causes of action, defenses and rights of offset or counterclaim, or settlement agreements (in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) to novate or otherwise assume the liabilities extent related to the Business pertaining to, arising out of and inuring to the benefit of any Seller Person;
(f) Any and all claims, rights to make claims and rights to proceeds to the extent related to the Business under any Seller Insurance Policies to the extent permitted by Section 5.10, other than, for the avoidance of doubt, under the Excluded Insurance Policies; and
(g) All Business Employee Plans and all assets set aside to fund such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates Business Employee Plans; and
(h) Any and all goodwill, if any, of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)Business.
Appears in 1 contract
Sale and Purchase of Assets. (a) Upon the terms, subject Subject to the conditions and in reliance upon the representations and warranties herein set forth, the Seller shall, sell, convey, transfer, assign and deliver (collectively, “Transfer”) to the Buyer, and the Buyer shall purchase and acquire from the Seller:
(i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretionthis Agreement, subject Sellers agree on the Closing Date (as hereinafter defined) to agreement with assign, sell, transfer, convey and deliver to Buyer, and Buyer agrees on the Reinsured; providedClosing Date to purchase and acquire from Sellers, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms assets of the Novated Contract without giving effect Sellers directly related to such amendment, unless its VOIPgate.com product together with all intellectual pro▇▇▇▇▇ ▇▇▇▇▇▇ with respect thereto (the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e"Product"), and the tangible and all intangible personal property, business records, customer lists, contract rights and goodwill of Sellers related thereto wherever the same may be located (bwhich, together with the Product, are sometimes herein referred to collectively as the "Array Assets"), together with the business of the Sellers constituted by such assets (the "Business"), including, without limitation, the following:
1.1.1. The name " xe "Array Telecom Inc." Array Telecom," the registration for the internet domain name "VOIP- gate.com," and all names and assumed names under which S▇▇▇▇▇▇ develop, market and sell the Array Assets, and all trade names, trademark or service mark registrations and applications (the "Trademark Reg▇▇▇▇ations"), common law trademarks, including but not limited to those identified on Schedule hereto, and all goodwill associated therewith;
1.1.2. All technology,-know-how, trade secrets, designs, computer source code, computer object code, copyrights related to the Array Assets, and all design and development tools, data and information, engineering notebooks, program documentation, alpha and beta releases and documentation, field trial information and reports, support documentation, help files, and all other information and data related to the development, enhancements, testing and quality control, marketing and sales of the Array Assets, including in each case all electronic and documentary evidence thereof and the computer programs and software (the "Computer Programs") listed on Schedule hereto but excluding the applicable Outside Array Contracts listed on Schedule hereto (collectively, the "Array Technology");
1.1.3. All rights to business relationships and all contracts and contract rights related to the Array Assets and the Business (the "Array Contracts"), including those rights pursuant to the contracts described in Schedule hereto;
1.1.4. All tangible personal property, personal computers, hard drives, computer tapes, PC boards and cards, software media duplicating equipment and the fixed assets related to the Array Assets or used in the Business, excluding any real property (the "Array Fixed Assets"), and including those properties listed in Schedule hereto;
1.1.5. All customer lists, contact lists, sales information, marketing materials and brochures, warranty claim reports and analyses, and all other business information related to the Array Assets and the Business (the "Array Business Information"); and
1.1.6. All inventories of parts, PC boards, components, recording media and supplies of Seller related to the Array Assets or the Business (the "Inventory") on hand as of the Closing Date, and including the Seller shall not be obligated to comply with this Section 1.2(e)Inventory listed in Schedule hereto.
Appears in 1 contract
Sale and Purchase of Assets. (a) Upon Subject to Section 5.5, upon the terms, terms and subject to the conditions and in reliance upon of this Agreement, at the representations and warranties herein set forthClosing, the Seller shall, shall sell, transfer, convey, transfer, assign and deliver (collectively, “Transfer”) to the BuyerPurchaser, and the Buyer Purchaser shall purchase and acquire from the Seller:
(i) the Seller’s right, title and interest in the renewals Seller (the “Renewal RightsSale”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to the following assets, properties and rights (tangible and intangible and wherever located) free and clear of all Liens (other than Permitted Liens), as such assets, properties and rights shall exist at the Closing (such assets, collectively, the “Transferred Assets”):
(a) all of the Intellectual Property that is Related to the Business, including: (i) Patents, including those set forth on Schedule 2.1(a)(i) to this Agreement (the “Transferred Patents”); (ii) registered and unregistered Marks and applications for the registration of Marks, including those set forth on Schedule 2.1(a)(ii) to this Agreement, (the “Transferred Trademarks”), together with all goodwill associated therewith; and (iii) copyright registrations, including those set forth on Schedule 2.1(a)(iii) to this Agreement (the “Transferred Copyrights”) (collectively, the “Transferred IP”), and all claims, causes of action and rights against third parties relating to or arising out of any of the Transferred IP, whether arising by way of counterclaim or otherwise;
(b) all Contracts Related to the Business set forth on Schedule 2.1(b) to this Agreement (the “Transferred Contracts”) and any rights or claims arising thereunder (which, for the avoidance of doubt, shall not include any Contracts subject to the Transition Services Agreement);
(c) all machinery, equipment, office equipment, vehicles, parts and all other assets items of tangible personal property of Seller that is Related to the Business (other than any such items set forth on Schedule 2.2(p) to this Agreement, in each case, which are, for the avoidance of doubt, Excluded Assets);
(d) all books and records (financial, laboratory and otherwise, including Tax Returns, Tax and accounting books and records related solely to the Business or the Transferred Assets (and related work papers and correspondence from accountants to the extent in the possession of Seller)), customer and supplier lists, billing records, distribution lists, manuals, patient support and market research programs and related databases, proprietary information, and all Product complaint files and adverse event files in the safety and quality databases of Seller (collectively, the “Books and Records”), in each case, that is Related to the Business (the “Transferred Books and Records”); provided, that (A) Seller and its Affiliates shall be entitled to keep copies thereof for operational, legal, Tax, regulatory or record-keeping purposes or in order to comply with applicable Laws, Seller’s or its Affiliates’ internal policies and procedures or any applicable contractual or other similar obligations, subject to the confidentiality obligations hereunder, and in each case as such policies, procedures and obligations are in effect on the date of this Agreement, (B) Transferred Books and Records shall not include (x) the Transferred Business Employee Records (the treatment of which is set forth in Section 2.1(e) below), (y) copies of any Books and Records to the extent relating to, held for use with or used in connection with any Excluded Asset or Excluded Liability, (z) any Books and Records the transfer of which would be prohibited by applicable Law and (C) Seller shall not be required to provide, or cause to be provided, the Transferred Books and Records in any form or medium other than the form or medium in which they were originally generated or exist as of the Seller will remain Closing Date and the property Transferred Books and Records shall only be deemed to include form or medium in which any such items were originally generated or exist as of the Seller.Closing Date;
(e) For greater certaintycopies of any employee or personnel files, in connection each case, (i) to the extent relating to any Transferred Employee and (ii) in Seller’s possession or control (collectively, the “Transferred Business Employee Records”); provided, that (A) Seller and its Affiliates shall be entitled to keep copies thereof for operational, legal, Tax, regulatory or record-keeping purposes or in order to comply with paragraph 1.2(a)(iiapplicable Laws, Seller’s or its Affiliates’ internal policies and procedures or any applicable contractual or other similar obligations, in each case, as in effect on the date of this Agreement, subject to the confidentiality obligations hereunder, (B) abovethe Transferred Business Employee Records shall not include any files the transfer of which would be prohibited by applicable Law and (C) Seller shall not be required to provide, or cause to be provided, the Transferred Business Employee Records in any form or medium other than the form or medium in which they were originally generated or exist as of the Closing Date and the Transferred Business Employee Records shall only be deemed to include form or medium in which any such items were originally generated or exist as of the Closing Date;
(f) all Product Inventory;
(g) subject to Section 5.18, the Transferred Registrations and all other Business Permits;
(h) all advertising, marketing, sales and promotional materials (including all coupons and sample packets) Related to the Business that are in Seller’s possession or control (collectively, the “Transferred Marketing Materials”);
(i) all prepaid expenses, rebates, deposits and refunds Related to the Business, including all security deposits, e▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller for the performance of a Transferred Contract (other than prepaid insurance with respect to any Reinsurance Contract, insurance policies not transferring to Purchaser in connection with the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract transactions contemplated by this Agreement (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each casecollectively, the “Outside DateExcluded Prepaid Expenses”));
(j) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables that are Related to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to Business;
(k) all claims, causes of action, rights of recovery, rights of recoupment and other rights of action against third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing Related to the Seller and such notice shall only apply in respect Business, whether arising by way of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation counterclaim or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable otherwise;
(l) all transferable warranties or similar rights relating to the Seller in accordance with Transferred Assets; and
(m) all other assets, properties, goodwill and rights that are Related to the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)Business.
Appears in 1 contract
Sale and Purchase of Assets. (a) Upon On the terms, terms and subject to the conditions and contained in reliance upon this Agreement, at the representations and warranties herein set forth, the Seller shall, sell, convey, transfer, assign and deliver Closing (collectively, “Transfer”as defined in Section 1.6) to the Buyer, and the Buyer shall purchase and acquire from Seller and Seller shall sell, convey, assign, transfer and deliver to Buyer all of the Seller:right, title, and interest of Seller in and to the following assets associated with the Branches, free and clear of all liens, security interests, pledges, encumbrances, adverse claims and demands of every kind, character and description whatsoever (other than “Permitted Liens” as such term is defined in Section 2.6), except as otherwise provided in this Agreement (all of which are collectively referred to herein as the “Assets”):
(i) the A. All of Seller’s right, title and interest interest, including any participation interest, in the renewals loans, including overdrafts (the “Renewal Rights”not to exceed $1,000 in any one account and being less than three (3) Business Days outstanding) associated with deposit accounts being assumed pursuant to Section 1.3, and other extensions of the in-force reinsurance policiescredit listed on Schedule 1.1(A) (as such Schedule may be updated in accordance with Section 1.7), contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto Effective Time (each, a “Reinsurance ContractLoan” and collectively, the “Reinsurance Loans”);
B. All rights of Seller under safe deposit contracts and leases set forth on Schedule 1.1(B) (as such Schedule may be updated in accordance with Section 1.7), for the safe deposit boxes located at the Branches as of the Effective Time (the “Safe Deposit Contracts”);
C. All books, records (including computer records and core system information), files and documentation relating to the Assets and the Liabilities (as defined in Section 1.3), in the form and manner kept by Seller, whether or not in electronic format (collectively, the “Records”), including, but not limited to:
(i) Signature cards, orders and contracts between Seller and its depositors, and records of similar character with respect to the Deposits;
(ii) Loan files, collateral records, and credit files relating to the Loans, including but not limited to all promissory notes, loan agreements, guaranty agreements, security and pledge agreements, and other contracts, agreements, records and documents evidencing or otherwise pertaining to the Loans (the “Loan Documents”); and
(iii) The Safe Deposit Contracts.
D. All cash on hand at the option Branches as of the Buyer, which may be exercised by the Buyer from time to time after close of business on the Closing Date, including vault cash, p▇▇▇▇ cash, tellers’ cash, cash in automated teller machines, and until cash items in the expiration process of collection (collectively, the “Cash on Hand”);
E. The real property described on Schedule 1.1(E) upon which the L▇▇▇▇▇ ▇▇▇▇▇▇ is located, including any easement, license, or termination date of a Reinsurance Contractreal property right associated therewith, any and all improvements to such property purchased, installed, or constructed by or on behalf of Seller and used in connection with the operation or maintenance of such Branch, including, without limitation, buildings, structures, parking facilities, and drive-in teller facilities (collectively the “Real Property”);
F. All furniture, fixtures, equipment, and other tangible personal property owned or leased by Seller relating to the Branches set forth on Schedule 1.1(F) (collectively, the “Branch Personal Property”), together with all assignable warranties and maintenance and service agreements pertaining to the Branch Personal Property but excluding signage bearing Seller’s name, logo, or service m▇▇▇;
G. All rights of Seller as lessee under the lease (the “Branch Lease”) associated with the M▇▇▇▇▇▇▇ Branch and all leasehold improvements thereto (the “Leasehold Improvements”);
H. All rights of Seller under agreements for merchant services and all merchant relationships associated with the Branches; and
I. With regard to each Deposit account, generally known as IRAs, Keoghs, or SEPs, maintained by a customer for the stated purpose of the accumulation of funds to be drawn upon at retirement (IRAs, Keoghs, and SEPs are hereinafter referred to as “Custodial/Fiduciary Accounts”), all of Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contractsrelated plan or trustee/custodian arrangements, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the held by Seller will remain the property of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsuredpursuant thereto; provided, however, that such assignment is subject to the consent of the interest holder as provided in Section 9.18 of this Agreement. Buyer shall succeed to all rights, title, benefits and interests of Seller in and to the Assets as of the Effective Time, and shall be entitled to receive all benefits therefrom as if Buyer had itself acquired such assets. To the extent that any Safe Deposit Contract may not amend be assigned without the consent of any Novated person which has not been obtained as of Closing, this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a default thereof. If any required consent applicable to a Safe Deposit Contract is not obtained prior to the Closing, or if any attempted assignment would be ineffective so that Buyer would not in effect acquire the effect benefit of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendmentrights, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the then Buyer and Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until enter into a commercially reasonable arrangement for Seller to act after the applicable Outside Date. With respect Closing as Buyer’s agent in order to any particular Reinsurance Contract, after preserve and obtain for Buyer the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e)benefits thereunder, and (b) such commercially reasonable arrangement shall be designed to transfer the applicable Outside Date, the Seller shall not be obligated economic costs of such benefits to comply with this Section 1.2(e)Buyer.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Select Bancorp, Inc.)
Sale and Purchase of Assets. (a) Upon On the terms, terms and subject to the conditions and other provisions set forth in reliance upon this Agreement, at the representations Closing, Seller will (or Seller and warranties herein set forth, Parent will cause the Seller shall, Specified Affiliates to) sell, convey, transfer, assign and deliver to Meda Luxembourg or Meda US (collectively, “Transfer”) as set forth on a schedule prepared by Purchaser and delivered to Seller at least five business days prior to the BuyerClosing), and the Buyer shall applicable Purchaser will purchase from Seller, free and acquire from the Seller:
(i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies clear of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer Liens except for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above)Permitted Encumbrances, all right, title and interest of Seller and its Affiliates in and to all other assets of the Seller will remain following assets related to the property products set forth in Schedule 1.1 (the “Specified Products”) and subject to Section 1.2 (collectively, the “Specified Assets”):
(a) the Specified IP Rights, including the Patent Rights and registered Trademark Rights set forth in Part 2.3(b) of the Seller.Disclosure Schedule;
(b) all rights of Seller and its Affiliates as of the Closing Date under the contracts set forth in Schedule 1.1(b); (the “Specified Contracts”);
(c) all packaging materials, finished product inventories and product samples, work-in-process inventories, active pharmaceutical ingredients and other raw materials of or for the Specified Products, including of the type of items set forth in Schedule 1.1(c), in each case as of the Closing Date (collectively, the “Specified Inventory”);
(d) the Authorizations for the Specified Products, in each case to the extent transferable to Purchaser, including those set forth in Schedule 1.1(d), which are transferable to Purchaser (the “Specified Authorizations”);
(e) For greater certaintyall claims, counterclaims, credits, causes of action, rights of recovery, and rights of indemnification or setoff against third parties and other claims to the extent arising out of or relating to the Specified Assets or the Specified Business (including those occasioned from or because of any and all past, present and future infringement of any Specified IP Rights, including all rights to recover damages (including past damages and attorneys’ fees), profits and injunctive or other relief for such infringement), whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or uncontingent;
(f) all Labeling, informational letters, sales training materials, trade show materials, including materials containing post-marketing clinical data (if any), advertising, marketing, sales and promotional materials that are in connection the physical possession of or under the control of Seller and its Affiliates as of the Closing Date to the extent related to the Specified Business and the promotion or sale of the Specified Products;
(g) (i) books, records, files, documentation and financial books and records relating exclusively to the Specified Business or the Specified Products and (ii) marketing plans; target lists; manufacturing information; clinical data; pharmacovigilance information, data and reports; pricing and reimbursement data; and regulatory dossiers (including correspondence with paragraph 1.2(a)(iiand any reports submitted to any Governmental Entity to the extent relating to the Specified Products, to the extent Seller or its Affiliates normally retains such records and minutes in the ordinary course of its regulatory activities); in each case to the extent related to the Specified Business or any of the Specified Products (the items identified in clause “(ii)” are referred to as “Mingled Books and Records” and together with the items identified in clause “(i)” the “Specified Books and Records”); provided that the Specified Books and Records shall be deemed not to include any books, records or other items (x) above, that are subject to restrictions on transfer pursuant to applicable Legal Requirements (including the Health Insurance Portability and Accountability Act of 1996) or with respect to which transfer would require any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and Authorization under applicable Legal Requirements; or (y) relating to performance ratings or assessments of employees of Seller or its Affiliates; provided further that (A) with respect to Mingled Books and Records that are included in documents which also include portions that are not related to the Reinsurance Contracts with Nova Casualty Company Specified Business or the Specified Products, Seller shall only be required to use reasonable commercial efforts to identify, extract and Associated Industries Insurance Companydeliver the portions that are material Mingled Books and Records from the other portions of such marketing plans; target lists; manufacturing information; clinical data; pharmacovigilance information, until December 31data and reports; pricing and reimbursement data; and regulatory dossiers; which do not related to the Specified Business or the Specified Products (it being understood that Seller may retain a copy of such Mingled Books and Records) and (B) if requested by Purchaser, 2003Seller shall use reasonable commercial efforts to obtain any necessary Authorizations required to transfer any books, provided, that records or other items subject to Authorization under applicable Legal Requirements; and
(h) all goodwill and the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation going concern value of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)Specified Business.
Appears in 1 contract
Sources: Asset Purchase Agreement (Jazz Pharmaceuticals PLC)
Sale and Purchase of Assets. (a) Upon On the terms, terms and subject to the conditions and other provisions set forth in reliance upon this Agreement, at the representations and warranties herein set forthClosing, the Seller shallwill and will cause each of its Affiliates to, sell, convey, transfer, assign and deliver to the Purchaser, and the Purchaser will purchase from the Seller or such Affiliates, all of the rights, title and interests of the Seller and each of its Affiliates into and under the following, free and clear of all Encumbrances, other than Permitted Encumbrances (which, subject to Section 1.2, are referred to in this Agreement as the “Transferred Assets”):
(a) the Patents and patent applications identified on Schedule 1.1(a), as well as any foreign or multinational counterparts (including Patents, statutory invention registrations, patent registrations industrial designs and industrial models) thereof, whether or not identified on Schedule 1.1(a), including all rights therein provided by multinational treaties or conventions and all improvements to the inventions disclosed in each of the foregoing (collectively, the “TransferTransferred Patents”); and the invention disclosures identified on Schedule 1.1(a) including all rights therein as well as all improvements to the Buyer, inventions disclosed therein made by the Purchaser;
(b) the Intellectual Property Rights (other than Patent rights) in and to or associated with the Buyer shall purchase and acquire from items identified on Schedule 1.1(b) (the Seller:“Transferred Non-Patent IP”);
(c) the Inventory (the “Transferred Inventory”);
(d) (i) the contracts identified on Schedule 1.1(d), (ii) any source code evaluation license regarding the Transferred Assets that is in substantially the Seller’s rightstandard form previously provided by the Seller to the Purchaser, title (iii) all other contracts in existence as of the date hereof that are exclusively related to the Business and interest that individually and in the renewals aggregate are not material to the Business, and (iv) any other contract primarily related to the Business, entered into by the Seller or any of its Affiliates after the date of this Agreement but prior to the Closing in compliance with this Agreement, (the “Renewal Rights”) of Unlisted Contracts” and, together with the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectivelycontracts described in this Section 1.1(d), the “Reinsurance Transferred Contracts”);
(iie) at the option prototypes, systems, equipment, furniture, fixtures, computer equipment, masks and other fixed assets that are identified on Schedule 1.1(e) (the “Transferred Fixed Assets”);
(f) all of the Buyershares of capital stock (the “Transferred Shares”) of Conexant Systems Israel (1996) Ltd. (the “Transferred Subsidiary”);
(g) all causes of action, which may be exercised by the Buyer lawsuits, judgments, claims and demands of any nature available from time to time after the Closing and until the expiration to or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned being pursued by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all or any of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, its Affiliates in each case to the extent owned related to the Business, the Transferred Assets, the Assumed Liabilities or the ownership, operation, use, function or value of any Transferred Asset, whether known or unknown, suspected or unsuspected and whether arising by way of counterclaim or otherwise including the right of the Seller or any of its Affiliates to pursue claims and transferable without enforce the consent obligations of any third party to any proprietary/confidential information agreements and non-competition agreements to which any current or former employee, consultant, contractor and actual or potential business partner, counterparty or investor of or in the Seller or any of its Affiliates is a party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by related to the Seller and transferable without the consent of Business or any third party, all of the Seller’s pricing and financial modelsTransferred Assets, electronic databases and files and software, except in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) included in the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, Excluded Assets or (ii) Novation Amendments related to Intellectual Property Rights that are not Transferred Assets;
(as defined belowh) have been fully executed all credits, prepaid expenses, deferred charges, advance payments, security deposits, prepaid items and delivered duties to the Buyer and the Seller and extent exclusively related to any Transferred Asset;
(iiii) all other consents Books and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).Records; and
(cj) From the Closing Date until December 31all guaranties, 2004warranties, the Buyer shall have reasonable access during normal business hours to the Records indemnities and to the employees similar rights in favor of the Seller or any of its affiliates for purposes of conducting its review of Affiliates to the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect extent primarily related to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)Transferred Asset.
Appears in 1 contract
Sale and Purchase of Assets. (a) A. Sale and Transfer of Assets. Upon the terms, terms and subject to the --------------------------- conditions and set forth in reliance upon this Agreement, at the representations and warranties herein set forthclosing provided for in Article V hereof (the "Closing"), the Seller shall, ▇▇▇▇▇▇▇▇ shall sell, conveyassign, transfer, assign convey and deliver (collectively, “Transfer”) to the BuyerPurchasers, and the Buyer Purchasers shall purchase purchase, acquire and acquire accept from the Seller:
(i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and ▇▇▇▇▇▇▇▇ all of the Seller’s ▇▇▇▇▇▇▇▇'▇ right, title and interest in and to each Reinsurance Contractthe following assets (hereinafter collectively referred to as the "Assets"):
(1) All of the trademarks, trade names and service marks, including registrations and applications, listed on Schedule I attached hereto ---------- and made a part hereof (hereinafter collectively referred to as the "Trademarks"), together with the goodwill associated therewith;subject
(2) All formulae, manufacturing instructions, batch formulations, technologies, analytical methods, trade secrets, know-how, active raw material specifications for ▇▇▇▇▇▇▇▇ sourced ingredients, and product specifications pertaining to the Seller’s obligations Products (hereinafter collectively referred to as the "Technical Information") and liabilities thereunder all notebooks, records, reports, databases (eachregarding stability results, a “Novated Contract,” release results and assay results) and other written documentation which contain or embody the Technical Information;
(3) The manufacturing equipment and packaging assets owned by ▇▇▇▇▇▇▇▇ that are used in the manufacture of the Products and set forth on Schedule II (collectively, the “Novated Contracts”"Equipment"),, located at the contract ----------- manufacturing facilities identified on such Schedule, and any associated warranty rights applicable to such manufacturing equipment, to the extent that ▇▇▇▇▇▇▇▇ is permitted to transfer such rights;
(iii4) such readily-marketable liquid assets or, All items of inventory as of the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal Closing relating to the fair value Business or the Products, including work in progress, finished product or raw materials, and packaging supplies, promotional display racks and other sales aids, wherever located (the "Inventory"), and all of ▇▇▇▇▇▇▇▇'▇ artwork, advertising copy and promotional materials used in the Business or the sale of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),Products;
(iv5) such additional assets owned by All customer and vendor lists relating to the Seller as Business or the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), andProducts;
(v6) all All of the Seller’s original statistical and sales data, records, papers▇▇▇▇▇▇▇▇'▇ files, documents, books, memorandarecords and other data (including, fileswithout limitation, andmarketing information and market research studies) relating to the Business or the Products and any extensions thereof or to any discontinued versions of the Products;
(7) All rights of ▇▇▇▇▇▇▇▇ under or pursuant to all warranties, representations and guarantees or otherwise from or against manufacturers to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining relating to the Novated Contracts, Business or the Products or affecting the Assets; and
(8) The agreements and copies of purchase orders listed on Schedule III ------------ hereto and all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, additional purchase orders from ▇▇▇▇▇▇▇▇ to third-party manufacturers relating to the extent owned by Products entered into in the Seller ordinary course of business after the date hereof and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining prior to the Renewal Rights Closing (the “Records,” together with the Renewal Rightscollectively, the Novated "Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”"), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) . Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumptionclauses (2), the Buyer may amend the terms (4) and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer (6) above shall not amend include any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable Technical Information, artwork or other information or documentation relating exclusively to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate bar or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)other food products.
Appears in 1 contract
Sale and Purchase of Assets. (a) Upon At the Closing, Sellers shall sell, assign, transfer or deliver to Purchaser, or cause to be sold, assigned, transferred or delivered to Purchaser, and Purchaser shall purchase and accept from Sellers, subject to Section 2.2 hereof, all of the following assets of Sellers relating to the Business, free and clear of all Liens, upon the terms, subject to the conditions and provisions and in reliance upon the covenants, agreements, representations and warranties herein of Purchaser (in the case of Sellers) and Sellers (in the case of Purchaser) set forth, the Seller shall, sell, convey, transfer, assign and deliver (collectively, “Transfer”) to the Buyer, and the Buyer shall purchase and acquire from the Sellerforth in this Agreement:
(a) All machinery, equipment, fixtures, furniture, supplies, vehicles and other tangible personal property wherever located, including the property set forth on Schedule 2.1(a);
(b) All Intellectual Property and goodwill associated therewith, including Intellectual Property set forth on Schedule 2.1(b), and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under all applicable laws;
(c) All rights to and under contracts, agreements, leases, subleases, assignments, licenses, sublicenses, indentures, mortgages, instruments, security interests, guaranties or other similar arrangements, whether written or oral, (i) the Seller’s right, title as set forth on Schedule 2.1(c) and interest in the renewals (the “Renewal Rights”ii) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto entered into after the date hereof which Purchaser specifically agrees to assume in writing and are assigned to Purchaser under the Sale Order (each, a “Reinsurance Contract” and collectively, the “Reinsurance Material Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above)All trade accounts receivables, all right, title notes receivable and interest in and to all other assets of the Seller will remain the property of the Seller.receivables;
(e) For greater certaintyAll claims, in connection with paragraph 1.2(a)(ii) abovedeposits, with respect to any Reinsurance Contractprepayments, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business except as set forth in Section 1.102.2, refunds, causes of action, choses in action, rights of recovery, rights of set-off, counterclaims and rights of recoupment, including for past, present or future damages for the breach, infringement or misappropriation of any Purchased Assets;
(f) All franchises, approvals, permits, licenses, orders, registrations, certificates, variances and similar rights, (in each case to the extent assignable under applicable law), and any applications for the same;
(g) All books, records and other documents, including fixed asset records, sales and advertising materials (including price lists), sales and purchase correspondence, technical and research data, books of account and records, ledgers, files, correspondence, drawings and specifications, creative materials, studies, reports and other items; and
(h) To the extent not otherwise specifically included in this Section 2.1 or excluded from this transaction by Section 2.2, all assets, rights, claims, causes of action and properties, as of the Closing Date, of every kind, character, nature and description, whether tangible or intangible, ▇▇▇▇▇▇ or inchoate, corporeal or incorporeal, matured or unmatured, known or unknown, contingent or fixed and wherever located. The Buyer will waive this right only by notice assets listed in writing to the Seller Section 2.1(a)-(h) constitute and such notice shall only apply in respect of the individual Reinsurance Contract be collectively referred to in such notice. The Seller acknowledges that this Agreement as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)“Purchased Assets”.
Appears in 1 contract
Sources: Asset Purchase Agreement (LTWC Corp)
Sale and Purchase of Assets. (a) Upon On the terms, terms and subject to the satisfaction or waiver of the conditions and in reliance upon of this Agreement, at the representations and warranties herein set forthClosing, the Seller shall, shall sell, convey, transfer, assign and deliver (collectively, “Transfer”) to the BuyerAVTEAM Sub, and the Buyer AVTEAM, through AVTEAM Sub, shall purchase purchase, acquire and acquire from the Seller:
(i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third partyaccept delivery of, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all 's right, title and interest in and to all other assets of the assets, properties, improvements and other rights which are owned, leased, licensed or otherwise Used by the Seller will remain in connection with the property operation of the Seller.Business as of the Closing Date, including without limiting the generality of the foregoing:
(a) all cash, cash equivalents, certificates of deposit and securities (including all pett▇ ▇▇▇h, deposit and demand accounts in financial institutions and money market investments). A more detailed list of items included under this Section 2.1(a) shall be set forth on Schedule 2.1(a) hereto;
(b) all trade accounts receivable arising from the provision of services, sale of inventory, notes receivable and insurance proceeds receivable (including without limitation, any claims, remedies and other rights related thereto) evidencing rights to payment through the Closing Date (other than the Excluded Assets referred to in Section 2.7 hereof). A more detailed list of items included under this Section 2.1(b) shall be set forth on Schedule 2.1(b) hereto (collectively, the "Receivables");
(c) all inventories of raw materials, work-in-process, finished goods, purchased parts, component parts, spare parts, gas turbine engines held for spare parts, inventory related paperwork and repair tags (including those traceable to the original aircraft engine from which parts, components or modules were removed) and related inventory items. A more detailed list of items included under this Section 2.1(c) shall be set forth on Schedule 2.1(c) hereto (collectively, the "Inventories");
(d) all assumable prepaid items for which the Purchaser would receive an economic benefit following the Closing Date, including all security and leasehold deposits reflected on Schedule 2.1(d) hereto (collectively, the "Deposits");
(e) For greater certaintyall machinery, in connection with paragraph 1.2(a)(iiequipment, owned gas turbine engines (including gas turbine engines held for lease, if any), molds, tooling, jigs, dies, measuring and calibrating devices, test cell equipment, automobiles and other vehicles, files, systems, furniture, fixtures, shelving and racking, office equipment, computers, computer equipment, computer software and computer systems, library of engine manuals and repair books and catalogs, records and engine repair procedures and leasehold improvements, including without limitation, those items listed on Schedule 2.1(e) above, with respect to any Reinsurance Contracthereto (collectively, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract "Fixed Assets");
(exceptf) all patents, in the case of patent applications, trademarks, copyrights, trade names, all variants thereof and goodwill associated therewith, trade secrets, engineering drawings, blue prints, know-how, trade secrets, technical information and other related assets, including without limitation, those items listed on Schedule 2.1(f) hereto (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each casecollectively, the “Outside Date”"Intellectual Property");
(g) all customer lists, vendor lists, referral lists, domestic and foreign certificates and certifications, including without limitation (but only to novate the extent transferable), Federal Aviation Administration ("FAA") and Joint Aviation Authorities ("JAA") certificates or otherwise assume the liabilities under such Reinsurance Contract authorizations, whether or not listed on Schedules to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer this Agreement, franchises, Permits, licenses, telephone numbers, brochures, advertising materials and who may offer finite reinsurance business as set forth data, restrictive covenants, chooses in Section 1.10. The Buyer will waive this right only by notice in writing action and similar obligations owing to the Seller from present and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumptionformer shareholders, the Buyer may amend the terms officers, employees and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e)agents, and other proprietary intangible assets, whether or not confidential, and all books, records, printouts, drawings, data, files, notes, notebooks, accounts, invoices, correspondence and memoranda (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e).including all personnel and payroll records of all
Appears in 1 contract
Sale and Purchase of Assets. (a) Upon the terms, subject Subject to the terms and conditions set forth herein, and in reliance upon the representations and warranties herein set forthcontained herein, at the Closing (as defined in Section 4.1), for the consideration specified in Section 3.1, Seller shallwill sell, sellassign, convey, transfer, assign transfer and deliver (collectively, “Transfer”) to the Buyer, and the Buyer shall will purchase and acquire from the Seller:
(i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s 's right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets orfollowing assets, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value same shall exist as of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”as defined in Section 4.1), andfree and clear of all liens, mortgages, pledges, security interests, charges, encumbrances, restrictions (collectively, "Liens"), equity interests of every nature ("Interests") and claims of every nature, whether or not reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, known or unknown, secured or unsecured and arising at any time ("Claims"):
(va) all machinery, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, repair parts, tools, plant and office equipment, computer hardware and software and other similar personal property identified on Schedule 1.1, together with any rights or Claims of Seller arising out of the Seller’s original statistical and sales datamaintenance or service contracts relating thereto or the breach of any express or implied warranty by the manufacturers or sellers of any such assets or any component part thereof;
(b) the United States government authorizations for B. C▇▇▇▇▇▇▇▇, records, papers, documents, books, memoranda, files, and▇. G▇▇▇▇▇▇ ▇▇▇ R. K▇▇▇▇▇▇▇▇▇ ▇▇ work for Seller in the United States, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and same are transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).;
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records all of Seller's rights and incidents of interest in and to the employees lease identified on Schedule 1.1 (including the security deposit of $33,112 thereunder) (the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts."Lease");
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title of Seller's rights and incidents of interest in and to all other assets of the computer applications and operating programs identified on Schedule 1.1 (including, without limitation, the licenses and agreements under which Seller will remain the property of the Seller.obtained rights to such applications and operating programs); and
(e) For greater certainty, in connection with paragraph 1.2(a)(iiall operating data and records (including payment and maintenance histories) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts Seller's possession which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing relate to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)Assets.
Appears in 1 contract
Sale and Purchase of Assets. (a) Upon the terms, subject Subject to the terms and conditions and --------------------------- of this Agreement, at the closing referred to in reliance upon Section 3 (the representations and warranties herein set forth"Closing"), the Seller shall, shall sell, conveyassign, transfer, assign convey and deliver (collectively, “Transfer”) to the Buyer, and the Buyer shall purchase purchase, acquire and acquire accept from the Seller:
(i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all 's right, title and interest in and to all of the assets used in the Business (other than the Excluded Assets referred to in Section 1.2) with such changes, deletions or additions thereto as may occur from the date hereof to the Closing in the ordinary course of business and consistent with the terms and conditions of this Agreement (the "Assets"), including, without limitation, the following:
(a) the real property (including the land and buildings, improvements and structures located thereon and all appurtenances belonging thereto) leased by Seller and used in the Business all as described in Schedule 1.l(a) (the "Leased Real Property");
(b) all the furnishings, furniture, office supplies, vehicles, tools, machinery, test equipment and equipment and other assets owned or used by Seller in the Business including, without limitation, the Equipment listed on Schedule 1.1(b) some of which is located at the Morton Grove, Illinois plant ("▇▇▇▇▇▇ Grove Plant") of ▇▇▇▇▇ ▇▇▇▇▇▇ Golf Company ("▇▇▇▇▇ ▇▇▇▇▇▇"), the parent corporation of Seller (collectively, the "Equipment");
(c) all accounts receivable of the Seller will remain the property business including all accounting records of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) abovecredit files, with respect to any Reinsurance Contractnotes, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts guarantees and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business collateral relating thereto except as set forth in Section 1.10. The Buyer will waive this right only by notice 6.22;
(d) all quantities of inventory, including finished goods, raw materials and work-in-process used in writing the Business (the "Inventory");
(e) all contracts, agreements, leases, arrangements and/or commitments of any kind which relate to the Seller Business including, without limitation, those contracts listed on Schedule 1.1(e) (the "Contracts");
(f) all files and such notice shall only apply in respect documents relating to customers and vendors of the individual Reinsurance Contract Business, and other business and financial records, designs for all existing and planned products, files, books and documents relating to the Business;
(g) all patents, trademarks, service marks, trade secrets, trade dress, know-how, product designs, specifications, manufacturing processes, copyrights or other proprietary information or rights, and trade names and applications therefor which are owned or used by Seller in the Business including, without limitation, those listed on Schedule 1.1(g), and all goodwill associated with the Business;
(h) all municipal, state and federal franchises, licenses, authorizations, permits and licenses of the Business;
(i) all prepaid items, unbilled shipment costs and fees, unbilled costs and fees, deposits, except for tax prepayments;
(j) all computer software and hardware (including software licenses, documentation and related objects and source codes); and
(k) any other Asset, except Excluded Assets, not referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of clauses (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and through (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(ej).
Appears in 1 contract
Sale and Purchase of Assets. (a) Upon At the termsClosing, subject to the conditions and in reliance upon the representations and warranties herein set forth, the Seller shall, shall sell, convey, transfer, assign assign, convey and deliver (collectively, “Transfer”) to the BuyerPurchaser, and the Buyer Purchaser shall purchase and acquire from the Seller:
(i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in of Seller in, to and to under all other of the assets of Seller used primarily in the Seller will remain the property operations of the Seller.Business as those assets exist on the Closing Date, other than Excluded Assets (as that term is defined in Section 2.2), wherever located, including the assets set forth below in this Section 2.1 (any and all such assets, the "Assets"):
(ea) For greater certaintyall Trailers, in connection with paragraph 1.2(a)(iiDomestic Containers and Chassis;
(b) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation all of the Reinsurance Contract rights and benefits of Seller under Contracts, purchase orders, proposals or bids primarily relating to which the Seller Business (but not including Contracts relating to systems hardware, software and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business other information technology except as set forth in Section 1.10. The Buyer will waive this right only by notice in writing 2.1(b) of the Seller Disclosure Schedule) to the extent such Contracts, purchase orders, proposals or bids are assignable;
(c) all books and records of Seller primarily relating to the Assets and such notice shall only apply Assumed Liabilities;
(d) the Names, Trademarks and Prefixes, solely to the extent provided by the license granted pursuant to Section 6.10(a);
(e) all personal computers primarily relating to the Business and software primarily relating to the Business, in respect each case which are set forth in Section 2.1(e) of the individual Reinsurance Contract referred Seller Disclosure Schedule;
(f) all Permits used or held for use primarily in connection with the Business, to in the extent such notice. The Seller acknowledges that as part Permits are assignable;
(g) all Accounts Receivable, net of reserves, including amounts receivable from railroads (net of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms railroads) as a result of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of railroads' self-reporting system;
(ah) the time that the Buyer waives its rights thereto as all investments set forth in this Section 1.2(e2.1(h) of the Seller Disclosure Schedule, including BAMCO and PAMC;
(i) all real property set forth in Section 2.1(i) of the Seller Disclosure Schedule, together with (i) all buildings, other facilities and other structures and improvements thereon, (ii) all rights, privileges, hereditaments and appurtenances appertaining thereto or to any of such buildings or other facilities or other structures or improvements and (iii) to the extent constituting real property under Applicable Laws, all fixtures, leasehold improvements, installations, equipment (including furniture, fax machines and other office equipment) and other property attached thereto or located thereon;
(j) all machinery, vehicles, tools, replacement and spare parts and supplies owned by Seller and used or held for use primarily in connection with the Business;
(k) all manufacturer's warranties and indemnities to the extent primarily related to the Assets and all claims under such warranties and indemnities (to the extent assignable); and
(l) subject to Section 2.2(b), all security deposits (to the extent reflected as a credit on the Cut-Off Net Assets Statement), ▇▇▇▇▇▇▇ deposits, and (b) all other forms of security placed with Seller or its Subsidiaries for the applicable Outside Date, performance of a contract or agreement which otherwise constitute a portion of the Seller shall not be obligated to comply with this Section 1.2(e)Assets.
Appears in 1 contract
Sale and Purchase of Assets. (a) Upon On the terms, terms and subject to the conditions set forth in this Agreement, and in reliance upon subject to Section 1.2, on the representations Closing Date, each of the Sellers, severally, shall sell and warranties herein set forth, the Seller shall, sell, convey, transfer, assign and deliver (collectively, “Transfer”) transfer to the BuyerPurchaser, and the Buyer Purchaser shall purchase and acquire from each of the Seller:
(i) the Sellers severally, such Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date in and which are listed on Schedule I hereto to all of the assets related to the Business, other than the Excluded Assets, including the assets specified below (each, a “Reinsurance Contract” and collectively, the “Reinsurance ContractsPurchased Assets”). Without limiting the generality of the foregoing, Purchased Assets shall include, to the extent they are related to the Business and are not Excluded Assets:
(a) The following assets of the Inc.:
(i) the Personal Property;
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, Purchased Inventory;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),Purchased Accounts Receivable;
(iv) such additional assets the Patents identified as being registered in the name of the Inc. set forth under the heading “Patents” in Part 1.1(a)(iv) of the Disclosure Schedule; the Trademarks identified as being owned by the Seller as Inc. set forth under the Buyer heading “Trademarks” in Part 1.2(a)(iv) of the Disclosure Schedule; and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), andIntellectual Property Rights;
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Assumed Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003Inc. is a party;
(vi) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as pre-paid assets set forth in Section 1.10. The Buyer will waive this right only by notice in writing Part 1.1(a)(vi) of the Disclosure Schedule;
(vii) all files, copies of research notes, and other data and records including, without limitation, the files, copies of research notes, and other data and records as far as they relate to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of Purchased Assets or any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the ReinsuredAssumed Liability; provided, however, that the Buyer a copy of all such documentation shall not amend any Novated Contract if the effect of be made available to Inc. at first request and Sellers shall be afforded reasonable access to such amendment would adversely affect the amounts of Margin Payments otherwise payable documents;
(viii) all rights, choses in action and claims, known or unknown, matured or unmatured, accrued or contingent, against third parties (including all warranty and other contractual claims), to the Seller extent relating to any Purchased Assets or any Assumed Liability;
(ix) all assignable federal, state, local and foreign governmental permits, authorizations and approvals relating to the Business including the Licenses described in accordance with the terms Part 1.1(a)(ix) of the Novated Contract without giving effect Disclosure Schedule; and
(x) all purchase orders, forms, labels, shipping materials, catalogs, brochures, art work, photographs and advertising, sales and promotional materials relating to the Business; provided, however, that such amendment, unless items are being provided to Purchaser solely for review and not for use by Purchaser in the Seller consents Business;
(xi) all telephone and fax numbers and related contracts used by the Business relating to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend Rancho C▇▇▇▇▇▇ Premises; and
(b) The Patents of the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as N.V. set forth in this Section 1.2(ePart 1.1(b) of the Disclosure Schedule;
(c) The Purchased Inventory of Benelux;
(d) The Trademarks of GmbH listed in Part 1.1(d) of the Disclosure Schedule; and
(e) The following assets of each of the Sellers other than the Inc.:
(i) all files, copies of research notes, and other data and records including, without limitation, the files, copies of research notes, and other data and records listed in Part 1.1(e)(i) of the Disclosure Schedule, but only if they relate exclusively to the Business; and
(ii) all rights, choses in action and claims, known or unknown, matured or unmatured, accrued or contingent, against third parties (including all warranty and other contractual claims), and to the extent relating exclusively to any Purchased Assets or any Assumed Liability).
(bf) The parties also contemplate that, at the applicable Outside DateClosing, the Seller Other Asset Sellers shall not be obligated transfer the consoles identified in Annex 1, Part 1.1(a)(i), Item f of the Disclosure Schedule (the “Europe Consoles”) to comply with this Section 1.2(e)the Purchaser by way of an appropriate Transfer Document.
Appears in 1 contract
Sale and Purchase of Assets. (a) Upon On the termsClosing Date, and subject to the conditions terms and in reliance upon the representations restrictions of this Agreement, Seller hereby sells, assigns, conveys, transfers and warranties herein set forth, the Seller shall, sell, convey, transfer, assign and deliver (collectively, “Transfer”) delivers to the Buyer, and the Buyer shall purchase hereby purchases, acquires and acquire accepts from the Seller:
, (i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s entire right, title and interest in and to each Reinsurance Contract, ;subject to a single electronic copy of the Seller’s obligations Software Code and liabilities thereunder (each, a “Novated Contract,” and collectively, of the “Novated Contracts”),
(iii) such readily-marketable liquid assets orManufacturing Documents, as the case may bedefined in Schedule 1.1, rights to funds withheld by the ceding insurerprovided that, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest is limited to the electronic copy itself and such copy itself does not include any Intellectual Property rights or give rise to any rights under any Intellectual Property rights whatsoever and as such, such copy itself, cannot establish patent exhaustion as to any Patents, including any Patents that might relate to the Software Code or the Manufacturing Documents, (ii) an undivided one-half ownership interest in and to all Copyrights in the Software Code and in the Manufacturing Documents, and (iii) an undivided one-half ownership interest in and to all Know-How embodied in, underlying or otherwise contained in the Software Code and in the Manufacturing Documents, as can be gleaned from a review of such Software Code and Manufacturing Documents without Seller’s assistance, provided that, for ActiveUS 176249971v.1 the avoidance of doubt, such Know-How does not include any Patents, including any Patents that might relate to the Software Code or the Manufacturing Documents (the interests in clauses (ii) and (iii) above being the “Transferred IP”), such Transferred IP to be held jointly with an undivided one-half interest retained by Seller, the one-half interests held by the Parties being subject to Section 1.1 (collectively, clauses (i) – (iii) constitute the “Purchased Assets”). For clarity, (a) other assets than delivery of a single electronic copy of the Seller will remain the property Software Code and of the Seller.
Manufacturing Documents, Seller shall have no obligation under this Agreement to deliver to Buyer any other tangible assets or any Intellectual Property and (eb) For greater certaintyno Patents or rights therein are sold, in connection with paragraph 1.2(a)(ii) aboveassigned, with respect conveyed, transferred or delivered hereunder. Buyer and its Affiliates and any permitted assignees under Section 7.9 will not sell, license, distribute or otherwise transfer or make available the Purchased Assets to any Reinsurance ContractThird Party except pursuant to Section 1.1, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (exceptSection 7.9, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as extent expressly set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect 2.3.4 of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)Distribution Agreement.
Appears in 1 contract
Sale and Purchase of Assets. (a) Upon In exchange for the termsconsideration specified herein, and on the terms and subject to the conditions and in reliance based upon the representations representations, warranties and warranties herein agreements of the parties hereinafter set forth, the Purchaser hereby agrees to purchase from Seller, and Seller shallhereby agrees to grant, sell, convey, transfer, assign and deliver to Purchaser, all of the property and assets (collectivelythe "Assets") of Seller, “Transfer”) to other than the BuyerExcluded Assets. The Assets shall include, and without limitation, the Buyer shall purchase and acquire from the Sellerfollowing:
(i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto all radio paging licenses issued or written by the Seller which comprise FCC ("FCC Licenses"), and all files relating to the Business FCC Licenses and correspondence with the FCC, as of the Closing Date and which are listed set forth on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”2(a)(i);
(ii) at all machinery, including but not limited to the option of machinery listed on Schedule 2(a)(ii);
(iii) all paging transmission equipment (the"Equipment"), spare parts and maintenance manuals for the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance ContractEquipment ("Spare Parts"), any and all rights of Seller under warranties covering such Equipment and parts, and all contracts for maintenance or servicing of the Seller’s right, title and interest in and to each Reinsurance Contract, Equipment;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by furniture, fixtures, computer and other office equipment and supplies located on any Premises, including, without limitation, the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”computer hardware listed on Schedule 2(a)(iv), and;
(v) all the Telephone Number Inventory and office telephone and other utility services of the Seller’s original statistical Business;
(vi) all Accounts Receivable;
(vii) the customer lists listed on Schedule 2(a)(vii) ("Customer List"), which Seller represents and sales datawarrants are the only customer lists relating to the Business, recordsand all other books and records relating to the Business, papers, documents, books, memoranda, files, and, other than the Excluded Assets (to the extent owned they so relate);
(viii) all the Leases and Personal Property Leases;
(ix) the Inventory;
(x) all trade names, trademarks, service marks or other identifying names used by Seller or the Predecessor Entity in the Business, and all goodwill related thereto (collectively, the "Trade Names");
(xi) the Billing Software;
(xii) goodwill of Seller;
(xiii) all other assets, properties and rights of Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, used in each case or pertaining to the Novated ContractsBusiness, other than the Excluded Assets. All of the Assets will be acquired by Purchaser free and copies clear of all of the Seller’s original statistical security interests, mortgages, pledges, liens, claims, encumbrances and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any other third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights party rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Recordcollectively,"Liens") until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long except as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Aquis Communications Group Inc)
Sale and Purchase of Assets. (a) Upon Except as set forth in Section 2.2, upon the terms, terms and subject to the conditions and in reliance upon set forth herein, at the representations and warranties herein set forthClosing, the Seller shall, shall sell, convey, transfer, assign and deliver to the Purchaser, and the Purchaser shall purchase, acquire and accept from the Seller, the following assets relating to the Facility (collectivelythe "Acquired Assets"):
(a) all furniture, “Transfer”furnishings, fixtures and leasehold improvements set forth on Schedule 2.1(a); ---------------
(b) all equipment, machinery, tools, personal property and other physical assets set forth on Schedule 2.1(b); ---------------
(c) all rights of the Seller with respect to leasehold interests relating to the personal property of the Facility set forth on Schedule 2.1(c); ---------------
(d) all rights of the Seller under the Contracts relating to the Facility set forth on Schedule 2.1(d) (the "Assigned Contracts"); ---------------
(e) to the Buyerextent permitted by applicable Law, all rights under all permits, consents, plans, registrations and other documents, commitments, arrangements, undertakings, practices or authorizations held in connection with the Buyer shall purchase and acquire from the Seller:
(i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) operation of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed Facility set forth on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”2.1(e);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(vf) all of the Seller’s original statistical office and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned by the Seller other supplies and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred inventories used by the Seller in connection with the use Facility set forth on Schedule 2.1(f); ---------------
(g) all computer software and hardware set forth on Schedule 2.1(g) used in connection with the Facility; --------------
(h) all books of such Record (above any license fees previously paid account, financial and accounting records, marketing and advertising material, files and patient and supplier lists solely used by the Seller in connection with the Facility; and
(i) all rights of the Seller relating to or arising out of or under express or implied warranties from suppliers with respect to any of the Acquired Assets relating to the Facility. To the extent that the conveyance, transfer or assignment of any Assigned Contract shall require the Consent of any Person other than the Purchaser or the Seller) will be borne , this Agreement shall not constitute any such conveyance, transfer or assignment, or any agreement or attempt to agree to convey, transfer or assign the same, if such action would constitute a breach thereof unless and until such Consent shall have been obtained, provided that the Seller shall, to the extent not prohibited by the Buyer (it being understood that relevant Assigned Contract, license the parties will Acquired Assets which are the subject thereof to the Purchaser at the Closing to use their in the Facility. Following the Closing Date, the Seller shall, if requested by the Purchaser, use commercially reasonable efforts to limit obtain the extent consent of any party or parties to any such costsAssigned Contract to the transfer, sublease or assignment thereof by the Seller to the Purchaser hereunder in all cases in which such consent is required for transfer, sublease or assignment. If any such consent is not obtained, or if practicable any attempted assignment thereof would be ineffective or would affect the rights of the Seller thereunder such that the Purchaser would not in fact receive all such rights, the Seller shall perform such Assigned Contracts for the account of the Purchaser or otherwise cooperate with the Purchaser in any arrangement reasonably necessary to do so).
(b) provide for the Purchaser the benefits under any such agreement. Notwithstanding the foregoing, but subject to Section 2.3, the Buyer Seller delegates to the Purchaser and the Purchaser undertakes to pay, perform and discharge in a timely manner all Assigned Contracts under which the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice is bound with respect to the Seller of the Buyer’s exercise of its right to acquire such assetFacility, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary whether or not any consent to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events thereof is a “Transfer Date”)required.
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e).
Appears in 1 contract
Sources: Asset Purchase Agreement (Healthcare Integrated Services Inc)
Sale and Purchase of Assets. (a) Upon On the terms, terms and subject to the conditions and other provisions set forth in reliance upon this Agreement, at the representations and warranties herein set forthClosing, Seller will (or Seller will cause the Seller shall, Specified Affiliates to) sell, convey, transfer, assign and deliver (collectivelyto Purchaser and Purchaser will purchase from Seller, “Transfer”) to the Buyerfree and clear of all Liens except for Permitted Liens, and the Buyer shall purchase and acquire from the Seller:
(i) the Seller’s rightall rights, title and interest of Seller and its Affiliates in and to all of the renewals following assets, in each case, as in existence as of the Closing Date (the assets listed in Section 1.1(a) through Section 1.1(j), collectively, the “Specified Assets”):
(a) the Patent Rights, registered Trademark Rights, Product Know-How, domain names, telephone numbers and copyrights in publications or pending publications, in each case, set forth in Schedule 1.1(a) (the “Renewal Specified IP Rights”);
(b) all rights of Seller and its Affiliates under the contracts set forth in Schedule 1.1(b) (the “Specified Contracts”), provided Seller shall retain the rights held by them prior to the Closing under any Specified Contract expressly providing them continuing indemnity and exculpation rights for pre-Closing occurrences for which they remain liable under this Agreement;
(c) the packaging materials, finished product inventories and product samples and work-in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued process inventories of or written by for the Seller which comprise the Business Specified Products in existence as of the Closing Date and which are listed on set forth in Schedule I hereto 1.1(c) (each, a “Reinsurance Contract” and collectively, the “Reinsurance ContractsSpecified Inventory”);
(iid) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject tooling specific to the Seller’s obligations Specified Products and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract no other products (the “Reserve Transfer AmountSpecified Product Tooling”),
) set forth in Schedule 1.1(d) (iv) such additional assets owned by with possession of the Seller as the Buyer and the Seller may agree Specified Product Tooling to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to the extent owned retained by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, or its Affiliates in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below order to continue to use such Record (provided, further, that such use is permitted without manufacture the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment Specified Products in accordance with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do soCommercial Supply Agreement).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller.;
(e) For greater certaintythe investigational new drug application number 103538 for the Specified Products and the new drug application number 209410 for the Specified Products and all supplements thereto, in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing Schedule 1.1(e) (the “Specified Authorizations”), all pre-clinical data, clinical data and laboratory data primarily relating to the Specified Products and referenced in the Specified Authorizations, the Regulatory Documentation transferred under Section 1.1(i), or the lab notebooks referenced in Section 1.1(h), and the safety database maintained by Seller as of the Closing Date for the Specified Products;
(f) all claims of Seller and its Affiliates against third parties arising out of or specifically relating to the Specified Assets to the extent such notice shall only apply claims arise on or after the Closing Date;
(g) Labeling (including any Specified Product Labeling materials and documents relating to the Specified Products), informational letters, sales training materials, trade show materials, advertising, marketing, sales, artwork and promotional materials, including hard copies and digital source files, in respect each case, that are in the physical possession of and under the control of Seller or its Affiliates as of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms Closing Date and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable only to the Seller in accordance with extent related solely to the terms promotion or sale of the Novated Contract without giving effect Specified Product and no other products, and any publications, advertising, sales training, guidance, marketing and other promotional materials and literature, submissions and correspondence sent to such amendment, unless or received from the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(eFDA Office of Prescription Drug Promotion (OPDP), the Seller shall not cancelin each case, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(eSchedule 1.1(g);
(h) lab books, any relevant training materials or product presentations, market research data, market intelligence reports, statistical programs (if any) used for marketing and sales research with respect to the Specified Products; and customer lists, target or call lists, data collected by the AccessOsmolex program, lists of patients enrolled in the patient assistance program for the Specified Product, in each case, that are under the control of Seller and its Affiliates as of the Closing Date and set forth in Schedule 1.1(h);
(bi) all Regulatory Documentation; and
(j) All prepaid FDA fees and other amounts due any Governmental Entity with respect to the applicable Outside Date, Specified Product or paid by Seller as of the Seller shall not be obligated to comply with this Section 1.2(eClosing Date set forth in Schedule 1.1(j).
Appears in 1 contract
Sources: Asset Purchase Agreement (Adamas Pharmaceuticals Inc)
Sale and Purchase of Assets. (a) Upon On the terms, terms and subject to the conditions and other provisions set forth in reliance upon this Agreement, at the representations and warranties herein set forthClosing, the Seller shallwill and will cause each of its Affiliates to, sell, convey, transfer, assign and deliver (collectively, “Transfer”) to the BuyerPurchaser, and the Buyer shall Purchaser will purchase and acquire from the SellerSeller or such Affiliates, all of the rights, title and interests of the Seller and each of its Affiliates into and under the following (which, subject to Section 1.2, are referred to in this Agreement as the “Transferred Assets”), free and clear of all Encumbrances, other than Permitted Encumbrances:
(i) the Seller’s rightpatents and patent applications identified on Schedule 1.1(a)(i), title as well as any foreign or multinational counterparts (including Patents, statutory invention registrations, patent registrations industrial designs and interest in the renewals (the “Renewal Rights”industrial models) of the in-force reinsurance policiesthereof, contractswhether or not identified on Schedule 1.1(a)(i), binders, endorsements including all rights therein provided by multinational treaties or conventions and extensions thereto issued or written all inventions and improvements covered by the Seller which comprise the Business as of the Closing Date claims in such applications and which are listed on Schedule I hereto registrations (each, a “Reinsurance Contract” and collectively, the “Reinsurance Transferred Patents”); (ii) the patents and patent applications identified on Schedule 1.1(a)(ii), including all rights therein provided by multinational treaties or conventions and all inventions and improvements covered by the claims in such applications and registrations (collectively, the “Other Transferred Patents”); and (iii) the invention disclosures identified on Schedule 1.1(a)(iii) and including all rights therein as well as all inventions and improvements disclosed therein made by the Seller;
(b) the Intellectual Property Rights (other than Patent rights) in and to or associated with the items identified on Schedule 1.1(b) (the “Transferred Non-Patent IP”);
(c) the Inventory (the “Transferred Inventory”);
(d) (i) the contracts identified on Schedule 1.1(d), and (ii) any other contract primarily related to the Business, entered into by the Seller or any of its Affiliates after the date of this Agreement but prior to the Closing without violating Section 4.2 of this Agreement (the contracts described in this Section 1.1(d) shall be collectively referred to as the “Transferred Contracts”);
(iie) at the option prototypes, systems, equipment, furniture, fixtures, computer equipment, masks and other fixed assets that are identified on Schedule 1.1(e) (the “Transferred Fixed Assets”);
(f) all causes of the Buyeraction, which may be exercised by the Buyer lawsuits, judgments, claims and demands of any nature available from time to time after the Closing and until the expiration to or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned being pursued by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all or any of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, its Affiliates in each case to the extent owned related to the Business, the Transferred Assets, the Assumed Liabilities or the ownership, operation, use, function or value of any Transferred Asset, whether known or unknown, suspected or unsuspected and whether arising by way of counterclaim or otherwise including the right of the Seller or any of its Affiliates to pursue claims and transferable without enforce the consent obligations of any third party to any proprietary/confidential information agreements and non-competition agreements to which any current or former employee, consultant, contractor and actual or potential business partner, counterparty or investor of or in the Seller or any of its Affiliates is a party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned related to the Business or any of the Transferred Assets, except in each case to the extent (i) included in the Excluded Assets or (ii) related to Intellectual Property Rights that are not Transferred Assets;
(g) all credits, prepaid expenses, deferred charges, advance payments, security deposits, prepaid items and duties to the extent related to any Transferred Asset;
(h) all Books and Records (except for a reasonable number of copies of embodiments of the Transferred IP, which will be retained by the Seller for use under, and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rightsa manner consistent with, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”IP License Agreement), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record to the Buyer for at least so long as the Seller has prepaid the license fees therefor, provided, that any and all costs and expenses incurred by the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).; and
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such assetall guaranties, (ii) Novation Amendments (as defined below) have been fully executed warranties, indemnities and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received similar rights in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees favor of the Seller or any of its affiliates for purposes of conducting its review of Affiliates to the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect extent related to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)Transferred Asset.
Appears in 1 contract
Sale and Purchase of Assets. (a) Upon the terms, subject Subject to the terms and conditions and in reliance upon the representations and warranties herein set forthof this Agreement (including Section 2.02 ), the at Closing Seller shall, shall sell, conveyassign, transfer, assign convey and deliver (collectively, “Transfer”) to the Buyer, and the Buyer shall purchase purchase, acquire, pay for and acquire accept from the Seller:
(i) the Seller’s , all right, title and interest of Seller and its Affiliates in the renewals (the “Renewal Rights”) of the Territory in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, the “Reinsurance Contracts”);
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid assets or, as the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract (the “Reserve Transfer Amount”),
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date (the “Additional Assets”), and
(v) all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda, files, and, to and under the extent owned by the Seller following assets, properties, privileges, claims and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assetscollectively, the “Assets”), providedfree and clear of all Encumbrances:
(a) The Patents, that Marks, Trademark Registrations and Copyrights described in Schedule 2.01(a) , and all other Intellectual Property (including Trade Secrets) relating primarily to the Product (all such Assets described in the event any such Record is not so owned and transferableforegoing clauses, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record “Assigned Intellectual Property”);
(provided, further, b) All Know-How that such use is permitted without the consent of the owner or licensor of such Record(i) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record primarily related to the Buyer for at least so long as Product or the Seller has prepaid Business, (ii) contained within or comprising the license fees thereforBooks and Records or (iii) used, provided, that any and all costs and expenses incurred by the Seller useful or necessary in connection with the use manufacture, packaging, labeling or testing of the Product as conducted by Seller or its Affiliates as of the date hereof, or in connection with the use, maintenance or operation of the Manufacturing Equipment by or on behalf of Seller or its Affiliates as of the date hereof, in each case solely for the Territory (except in connection with the exercise of Buyer’s rights in Section 2.01(g) to make or have made the Product outside the Territory) (all such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).
(b) Notwithstanding the foregoing, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest Know-How described in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as clauses (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset), (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to ), the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date“ Transferred Know-How ”).;
(c) From All registrations, applications, approvals, licenses and permits relating to the Closing Date until December 31, 2004Assets (including the Product) from the FDA and any other Governmental Authority in the Territory held in the name of Seller or any of Seller’s Affiliates (collectively, the Buyer shall have reasonable access during normal business hours “Product Registrations”), including those set forth on Schedule 2.01(c) , and all supplements thereto, whether issued, pending, or in draft form, and all records, reports, data and other information primarily related to the Records Assets (including the Product) required to be kept under applicable Laws in the Territory and all correspondence to or from all Governmental Authorities in the Territory which relates primarily to the employees of Assets (including the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.Product);
(d) Other than All current and archived books, computer data, records, files, documents, information, correspondence and data (audio, visual or print) in Seller’s possession or control to the extent relating primarily to the Assets (subject to Section 1.2(bincluding the Product) above)for the Territory, all right, title and interest including in each case as and to the extent relating primarily to the Assets for the Territory, as applicable: research and development reports, studies, pre-clinical and clinical data, research and development data, lists of customers and suppliers of the Product in the Territory, miscellaneous records with respect to customers and supply sources, credit and collection records, adverse experience reports and files and data related thereto and all periodic adverse experience reports, files and data, and all other assets files, data and records related to pharmacovigilence matters, business development plans, advertising matter, catalogs, correspondence, mailing lists, photographs, sales and distribution materials and records, purchasing materials and records, manufacturing and quality control records and procedures, market materials, marketing and promotional materials, product literature, training materials, sale aids, research data, copies of all files relating to the Seller will remain filing, prosecution, issuance, maintenance, enforcement and/or defense of any Assigned Intellectual Property, master batch records, including change of control history, executed records for all lots, including those expired, product batch records, analytical methods and validation reports with respect to process, equipment and methods, product complaints, stability data and the property of history thereof, annual reports, annual product reports, FDA and internal audit reports, whether on paper or in electronic format (the Seller.“Books and Records”);
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire The manufacturing equipment and assets listed on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003Schedule 2.01(e) (in each case, the “Outside DateManufacturing Equipment”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and any warranty rights applicable to such Manufacturing Equipment (bto the extent the same are transferable);
(f) All customer and supplier relationships and goodwill primarily related to the applicable Outside DateProduct;
(g) All rights to market or have marketed, sell or have sold, promote or have promoted, distribute or have distributed the Product in the Territory, and make or have made the Product in or outside of the Territory, including, to the extent transferable, all rights to reference Drug Master Files and other data for the Product’s active pharmaceutical ingredients;
(h) All claims, counterclaims, credits, causes of action, rights of recovery and rights of setoff and third party warranties, guaranties and similar contractual rights as to the third parties held by Seller shall not be obligated or any Affiliate of Seller to comply with the extent related primarily to the Assets; and
(i) All other assets, properties, privileges, claims and rights of Seller and its Affiliates relating primarily to the Product or the Business in the Territory (except for Intellectual Property or Know-How, each of which is being sold, assigned, transferred, conveyed and delivered by Seller to Buyer pursuant to the other subparagraphs of this Section 1.2(e2.01 ).
Appears in 1 contract
Sale and Purchase of Assets. (a) Upon On the terms, terms and subject to the conditions and of this Agreement, at the Closing referred to in reliance upon the representations and warranties herein set forthSection 6, the Seller shall, Sellers shall sell, convey, transferassign, assign transfer and deliver (collectively, “Transfer”) to the Buyer, and the Buyer shall purchase purchase, acquire and acquire from accept delivery of the Seller:following assets and properties (the "Assets"):
(i) the Seller’s right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of the Closing Date and which are The inventory listed on Schedule I hereto (each, a “Reinsurance Contract” and collectively, 1)(a)(i)(A) (the “Reinsurance Contracts”"Merchandise Inventory"). The value of the Merchandise Inventory is $2,209,630 ("Merchandise Inventory Value");
(ii) at Trade accounts receivable listed on Schedule (1)(a)(ii) (the option "Purchased Trade Receivables"). The value of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, Purchased Trade Receivables is $1,240,374 ("Purchased Trade Receivables Value");subject to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),
(iii) such readily-marketable liquid The fixed assets or, as (the case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value "Fixed Assets") of the assets and liabilities assumed under each Novated Contract Sellers all as set forth on Schedule (the “Reserve Transfer Amount”1)(a)(iii),;
(iv) such additional assets owned by the Seller as the Buyer and the Seller may agree to be Transferred from time to time after the Closing Date The assignment of Sellers' lease arrangements for two trucks set forth on Schedule (the “Additional Assets”1)(a)(iv), and;
(v) all The assignment of the Seller’s original statistical Vendor Agreements and sales understandings with suppliers and vendors, whether written or otherwise listed in Schedule 1(a)(v);
(vi) All of Sellers' rights under any products liability insurance policy (or similar agreement) under which Sellers are an insured, named as an additional insured or is otherwise a beneficiary, and all proceeds realized in connection therewith listed in Schedule 1(a)(vi);
(vii) All proprietary knowledge, Trade Secrets, Confidential Information, computer software and licenses, formulae, designs and drawings, quality control data, processes (whether secret or not), methods, inventions and other similar know-how or rights Used in the conduct of the Sellers' business;
(viii) the Sellers' Permits and other authorizations of Governmental Authorities (to the extent such Permits and other authorizations of Governmental Authorities are transferable) and third parties, licenses, telephone numbers for all locations, facsimile numbers, website addresses, customer lists, vendor lists, referral lists and contracts, advertising materials and data, restrictive covenants, choses in action and similar obligations owing to the Sellers from its present and former shareholders, officers, employees, agents and others, together with all databases, operating data and records (including credit records), files, papers, documents, books, memoranda, files, and, records and other data of the Sellers relative to the extent owned by the Seller and transferable without the consent of any third party, all operation of the Seller’s pricing and financial modelsSellers' business, electronic databases and files and softwarei.e., in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, customer records, papersvendor records, documents, books, memoranda and files and, to etc. The Sellers shall for a period of not less than three years make their records for transactions through the extent owned by the Seller and transferable without the consent of any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), provided, that in the event any such Record is not so owned and transferable, the Seller shall permit those of its employees who have been offered and have accepted employment by the Buyer pursuant to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without the consent of the owner or licensor of such Record) until the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of the Seller’s right or license to use such Record Closing available to the Buyer on request for at least so long as review and copying (whether for the Seller has prepaid purpose of facilitating the license fees thereforpreparation of Securities and Exchange Commission reports for Buyer's affiliates or otherwise), provided, and they shall not destroy its respective records without first offering to deliver the same to the Buyer;
(ix) all rights of the Sellers in and to the name Laish Israeli Food Products Ltd. and any other name that any incorporates the word Laish and all costs variants thereof, and expenses incurred by the Seller all other trade names, brand names, logos, trademarks and slogans Used in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (its business, all variants thereof and all goodwill associated therewith, it being understood that Sellers shall have the parties will use their commercially reasonable efforts rights to limit the extent corporate name of such coststhe Company in accordance with Section 5(f);
(x) all other purchase orders, if practicable customer orders, and other rights under contracts in the ordinary course;
(xi) all rights and all intangible assets, including but not limited to do so)(i) goodwill; (ii) customer agreements and contractual rights arising out of Company's ordinary course of business and (iii) software, information technologies, business forms, business files, vendor information and agreements, and other intellectual property related to the Company's business;
(xii) Zanlacol inventory in the amount of $25,000.
(b) Notwithstanding the foregoing, the Buyer following assets and properties ("Excluded Assets") are not included in the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as Assets:
(i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, Cash;
(ii) Novation Amendments (as defined belowdeclined trade receivables listed in Schedule 1(a)(ii) have been fully executed and delivered in an amount equal to the Buyer and the Seller and $119,605;
(iii) all other consents and approvals necessary Any rights accruing to the assignment and assumption Company in connection with a litigation pending in the United States District Court for the Eastern District of such Novated Contracts have been received in writing by the Buyer and the Seller New York, entitled Laish Food Products Ltd. v Jaffora-Tabori Ltd (the date of the occurrence of the final of such events is a “Transfer Date”Case No: 02CV1322); and
(iv) Any other assets not being purchased hereunder, including security deposits, if any.
(c) From Any cash proceeds (inclusive of checks, money orders and credit card transactions) or return of security of the Closing Date until December 31, 2004, Excluded Assets received by the Buyer shall have reasonable access during normal business hours subsequent to the Records and date of Closing shall be remitted by Buyer to the employees Company (and Company shall receive such remittance on behalf of the Seller or its affiliates for purposes Sellers) within five (5) days from receipt. Conversely, any cash proceeds (inclusive of conducting its review checks, money orders and credit card transactions) of the Reinsurance Contracts.
(d) Other than Assets received by the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10. The Buyer will waive this right only by notice in writing Sellers subsequent to the Seller and such notice date of Closing shall only apply in respect of be remitted by the individual Reinsurance Contract referred Sellers to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of within five (a5) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)days from receipt.
Appears in 1 contract
Sources: Asset Purchase Agreement (G Willi Food International LTD)
Sale and Purchase of Assets. (a) Upon the terms, terms and subject to the conditions and set forth in reliance upon this Agreement, including receipt of necessary Consents (as defined in Section 1.1(b) hereof) for the representations and warranties herein set forthassignment of Contested Assets (as defined in Section 1.1(b) hereof), on the Closing Date (as defined in Section 2.1 hereof), Seller shall, shall sell, convey, transferassign, assign transfer and deliver (collectively, “Transfer”) to the Buyer, and the Buyer shall purchase and acquire from the Seller:
(i) the , all of Seller’s 's right, title and interest in the renewals (the “Renewal Rights”) of the in-force reinsurance policies, contracts, binders, endorsements and extensions thereto issued or written by the Seller which comprise the Business as of at the Closing Date in and which are to those assets exclusively relating to the Business and listed on Schedule I hereto in clauses (eachi) - (ix) below, a “Reinsurance Contract” and collectivelythose additional assets referred to in Section 1.1(b) hereof (only to the extent provided herein), but excluding those assets referred to in Section 1.1(c) below (all said assets exclusively relating to the “Reinsurance Contracts”Business to be sold, conveyed, transferred, assigned and delivered being hereinafter collectively referred to as the "Purchased Assets"):
(i) Seller's Audio Book Club masterfile database, including, without limitation, all (active and inactive) customer (member) data (including addresses), sales/returns transaction history, payment history, promotional marketing data and history, and collections history (such data being hereinafter collectively referred to as the "Masterfile Database");
(ii) at the option of the Buyer, which may be exercised by the Buyer from time to time after the Closing and until the expiration or termination date of a Reinsurance Contract, any and all of the Seller’s right, title and interest in and to each Reinsurance Contract, ;subject proprietary "800" telephone number exclusively relating to the Seller’s obligations and liabilities thereunder (each, a “Novated Contract,” and collectively, the “Novated Contracts”),Business;
(iii) Seller's inventories of (A) audio books, (B) premium merchandise, if any, (e.g., audio cassette players) and (C) manufacturing components, in each such readily-marketable liquid assets orcase relating exclusively to audio book club new member recruitment and not imprinted with the name "Columbia House" or any related marks or derivations thereof, as the in each case may be, rights to funds withheld by the ceding insurer, measured on a fair market value basis in amounts equal to the fair value of the assets and liabilities assumed under each Novated Contract wherever located (the “Reserve Transfer Amount”"Inventory"),;
(iv) Seller's inventory of brochures, sales literature, creative advertising materials, art work, promotional material and other selling material in each case exclusively relating to the Business, wherever situated, including, but not limited to, book cover images and title copy descriptions (collectively, the "Promotional Assets"); provided, however, Seller will not be required to transfer to Buyer any materials containing the name "Columbia House", any other name used by Seller, or any related marks or derivations thereof (collectively, "Seller Marks"), subject to the next sentence. If any creative materials, duplicating film or other "master" duplicating materials constituting Promotional Assets contain Seller Marks, Seller will so advise Buyer and will make printed copies of the materials concerned available for Buyer's review. If Buyer so elects in respect of any such additional assets owned by materials, Seller will transfer them to Buyer but may delete the Seller as the Buyer and the Seller may agree to be Transferred Marks from time to time after the Closing Date (the “Additional Assets”), andthem at Buyer's expense;
(v) all Papers, documents (including printed or computerized copies of information stored in electronic forms such as computer disks, CD Rom, computer tape, computer hard drive and the Seller’s original statistical like), instruments, books and sales data, records, papers, documents, books, memoranda, files, and, books of account and other records by which the Purchased Assets might be identified or rights with respect thereto enforced. Seller shall not be required to deliver such items listed in this Section 1.1(a)(v) to the extent owned by the that such delivery would violate (i) any confidentiality agreement to which Seller and transferable without the consent of any third is a party, all of the Seller’s pricing and financial modelsor bound by, electronic databases and files and software, in each case pertaining to the Novated Contracts, and copies of all of the Seller’s original statistical and sales data, records, papers, documents, books, memoranda and files and, to the extent owned by the Seller and transferable without the consent of or (ii) any third party, all of the Seller’s pricing and financial models, electronic databases and files and software, in each case pertaining to the Renewal Rights (the “Records,” together with the Renewal Rights, the Novated Contracts, the Reserve Transfer Amount and the Additional Assets, the “Assets”), legal privilege; provided, that in the event any such Record is not so owned and transferable, the case of clause (i) Seller shall permit use those of its employees who have been offered and have accepted employment by the Buyer pursuant efforts prescribed in Section 1.1(b) herein to Section 1.8 below to continue to use such Record (provided, further, that such use is permitted without obtain the consent of the owner or licensor of such Record) until parties to the earlier of (x) the date on which such employee commences his or her employment with the Buyer and (y) the termination of the Seller’s license relevant confidentiality agreements to use such Record, and the Seller will use its commercially reasonable efforts to (A) maintain the right of such employees to continue to use such Records during such period, and (B) facilitate the transfer of such items;
(vi) the Seller’s right rights of Seller under all such contracts, agreements or license to use such Record commitments exclusively relating to the Buyer for at least so long as Business, including, without limitation, license agreements, marketing agreements (including, without limitation, agreements relating to rights to list rentals, package inserts and ride alongs), noncompetition agreements, confidentiality agreements and vendor agreements;
(vii) all accounts receivable of the Seller has prepaid the license fees thereforBusiness net of credits due to customers, provided, that any and all costs and expenses incurred by payments made relating thereto after the Seller in connection with the use of such Record (above any license fees previously paid by the Seller) will be borne by the Buyer (it being understood that the parties will use their commercially reasonable efforts to limit the extent of such costs, if practicable to do so).Closing Date;
(bviii) Notwithstanding the foregoinga complete set of analytical files, the Buyer and the Seller agree and acknowledge that the Buyer will not acquire or assume any right, title or interest in or to or liability under any Novated Contract or Reserve Transfer Amount until such time as (i) the Buyer has provided written notice to the Seller of the Buyer’s exercise of its right to acquire such asset, (ii) Novation Amendments (as defined below) have been fully executed and delivered to the Buyer and the Seller and (iii) all other consents and approvals necessary to the assignment and assumption of such Novated Contracts have been received in writing by the Buyer and the Seller (the date of the occurrence of the final of such events is a “Transfer Date”).
(c) From the Closing Date until December 31, 2004, the Buyer shall have reasonable access during normal business hours to the Records and to the employees of the Seller or its affiliates for purposes of conducting its review of the Reinsurance Contracts.
(d) Other than the Assets (subject to Section 1.2(b) above), all right, title and interest in and to all other assets of the Seller will remain the property of the Seller.
(e) For greater certainty, in connection with paragraph 1.2(a)(ii) above, with respect to any Reinsurance Contract, the Seller hereby grants the Buyer the exclusive right from the Closing Date until 120 days after the expiration of such Reinsurance Contract (except, in the case of (x) Reinsurance Contracts which expire on December 31, 2003, until 60 days after the expiration of such contracts and (y) the Reinsurance Contracts with Nova Casualty Company and Associated Industries Insurance Company, until December 31, 2003, provided, that the Seller will not initiate discussions with Associated Industries Insurance Company regarding the commutation of the Reinsurance Contract to which the Seller and Associated Industries Insurance Company are parties prior to December 19, 2003) (in each case, the “Outside Date”) to novate or otherwise assume the liabilities under such Reinsurance Contract or to introduce the Reinsurance Contracts to third parties who are not affiliates of the Buyer and who may offer finite reinsurance business as set forth in Section 1.10on Schedule 1.1(a)(viii) hereto, relating exclusively to audio book club members and analysis and testing files of other Columbia House Members as to audio books only; and
(ix) current backorder files and collections files relating exclusively to audio book club accounts. The Promptly following the Closing Date, Seller shall provide Buyer will waive this right only by notice in writing with a certificate to the Seller and such notice shall only apply in respect of the individual Reinsurance Contract referred effect that all amounts required to in such notice. The Seller acknowledges that as part of any such novation or assumption, the Buyer may amend the terms and conditions of any Novated Contract in its discretion, subject be refunded to agreement with the Reinsured; provided, however, that the Buyer shall not amend any Novated Contract if the effect of such amendment would adversely affect the amounts of Margin Payments otherwise payable to the Seller in accordance with the terms of the Novated Contract without giving effect to such amendment, unless the Seller consents to such amendment in writing. Except as contemplated by this Section 1.2(e), the Seller shall not cancel, commute, novate or otherwise alter or amend the terms of any Reinsurance Contract until after the applicable Outside Date. With respect to any particular Reinsurance Contract, after the earlier of (a) the time that the Buyer waives its rights thereto as set forth in this Section 1.2(e), and (b) the applicable Outside Date, the Seller shall not be obligated to comply with this Section 1.2(e)customers have been refunded.
Appears in 1 contract