Sale and Purchase of Assets. (a) Subject to the terms and conditions set forth herein and in reliance upon the representations and warranties contained herein, at the Closing, for the consideration specified in Section 4.1, the Company will sell, assign, convey, transfer and deliver to Buyer, and Buyer will purchase and acquire from the Company, all of the Company's right, title and interest in and to (i) the Business Intellectual Property, free and clear of any Liens, other than Permitted Liens, (ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iii) all other assets, properties and rights (whether tangible or intangible, real, personal or mixed, fixed, contingent or otherwise, and wherever located) of the Company or otherwise Related to the Business (except for Retained Assets), in each case free and clear of any Liens, other than Permitted Liens, as the same shall exist on the Closing Date, including the following to the extent Related to the Business (unless otherwise provided): (i) all real property Leases set forth on Schedule 2.1(a)(i); (ii) all accounts, loans and notes receivable (whether current or not current), performance and surety bonds and letters of credit or other similar instruments in favor of the Company; (iii) all inventories, including finished products, work-in-process, materials, parts, components, production stock, accessories, supplies and consigned inventory (including all such inventories that are held by third parties); (iv) all machinery, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software (including all enterprise information systems), engineering and design equipment, computer networking equipment and other tangible personal property, together with any rights, claims and interests arising out of maintenance 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; (v) all Contracts, including all rights to receive payment for products sold or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Date); (vi) all credits, advances, prepaid expenses, deposits and retentions held by third parties, including those held by third parties under Contracts; (vii) all Permits; (viii) all lock boxes; (ix) the benefits of coverage provided by insurance policies of the Company (with respect to the Business) in respect of matters occurring on or prior to the Closing Date as set forth in Section 9.5; (x) all operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and information; (xi) the corporate name "StarTrak Systems" and any other names used in connection with the Business; (xii) all telephone numbers used in connection with the Business; (xiii) all rights in and to products sold or leased by the Business and products of the Business currently in development; (xiv) all causes of action, choses in action, lawsuits, judgments, claims, rights under express or implied warranties, guarantees, indemnities and similar rights in favor of the Company, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands of any nature available to or being pursued by the Company; (xv) all goodwill and going concern value of the Business; and (xvi) all other assets, properties and rights (other than Retained Assets), including those reflected as assets on the Final Closing Statement. The assets, properties and rights of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals of any of the foregoing from the date of this Agreement through the Closing Date. (b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets. (c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement). (d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Alanco Technologies Inc), Asset Purchase Agreement (Alanco Technologies Inc), Asset Purchase Agreement (ORBCOMM Inc.)
Sale and Purchase of Assets. (a) Subject to the terms and conditions set forth herein of this Agreement, and in reliance upon the representations representations, warranties and warranties covenants contained herein, at each of the Closing, for the consideration specified in Section 4.1, the Company Sellers will sell, assign, convey, transfer transfer, assign and deliver to the Buyer, and the Buyer will purchase and acquire from each of 6 the CompanySellers, the entire business of each Seller as a going concern, including without limitation the businesses conducted under the names "LCG Latino" and "Latin Reports," and all of the Company's right, title and interest of each Seller in and to (i) all of the Business Intellectual Property, free and clear of any Liens, other than Permitted Liens, (ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iii) all other assets, properties and rights (whether tangible or intangiblebusiness of each Seller, of every kind and description, real, personal or mixed, fixedtangible or intangible, contingent or otherwise, and wherever located) of the Company or otherwise Related to the Business (except for Retained Assets), in each case free and clear of any Liens, other than Permitted Liens, as the same shall exist on the Closing DateDate (as such term is defined in Section 3.1), other than the Excluded Assets described below, including without limitation, good will, the following trade names "LCG Latino" and "Latin Reports," and all variants thereof and any related trade marks to the extent Related permitted by law, all know-how, trade secrets, other trade names, governmental filings, licenses, approvals and authorizations, leasehold improvements, equipment, fixtures, rights under contracts, agreements and leases, prepaid expenses, franchises, deposits, rights to funds of whatever nature, client lists, client correspondence, advertising materials and files of any kind and other books and records, and all other properties and rights of every kind of nature owned or held by each Seller on the Business Closing Date or then used by it in its business, whether or not referred to in this Agreement (unless otherwise provided):collectively, the "Assets"); provided that the following assets of the Sellers ("Excluded Assets") are excluded from the assets and properties being sold hereunder and shall be retained by and remain the property of the Sellers:
(i) All cash and all real property Leases set forth cash equivalents on hand as of the Closing Date, amounting to a total of $346,604, in the accounts identified in Schedule 2.1(a)(i);1.1.
(ii) all accounts, loans All art work and notes receivable (whether current or not current), performance and surety bonds and letters other personal effects of credit or other similar instruments in favor any of the Companyemployees or shareholders of LCG which are on LCG's premises;
(iii) all inventories, including finished products, work-in-process, materials, parts, components, production stock, accessories, supplies and consigned inventory (including all such inventories that are held Computer equipment used by third parties);Shel▇▇▇ ▇▇▇▇▇▇ ▇▇ his home; and
(iv) all machineryLeasehold improvements at Shel▇▇▇ ▇▇▇▇▇▇'▇ ▇▇▇e, equipmentin the amount of $9,040, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software (including all enterprise information systems), engineering and design equipment, computer networking equipment and other tangible personal property, together with any rights, claims and interests arising out of maintenance 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;
(v) all Contracts, including all rights to receive payment for products sold or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Date);
(vi) all credits, advances, prepaid expenses, deposits and retentions held by third parties, including those held by third parties under Contracts;
(vii) all Permits;
(viii) all lock boxes;
(ix) the benefits of coverage provided by insurance policies of the Company (with respect to the Business) in respect of matters occurring on or prior to the Closing Date as set forth in Section 9.5;
(x) all operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and information;
(xi) the corporate name "StarTrak Systems" and any other names used in connection with the Business;
(xii) all telephone numbers used in connection with the Business;
(xiii) all rights in and to products sold or leased by the Business and products of the Business currently in development;
(xiv) all causes of action, choses in action, lawsuits, judgments, claims, rights under express or implied warranties, guarantees, indemnities and similar rights in favor of the Company, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands of any nature available to or being pursued by the Company;
(xv) all goodwill and going concern value of the Business; and
(xvi) all other assets, properties and rights (other than Retained Assets), including those reflected as assets on the Final Closing Statement. The assets, properties and rights of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals of any of the foregoing from the date of this Agreement through the Closing DateSchedule 1.1.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract
Sources: Asset Purchase Agreement (Nelson Communications Inc)
Sale and Purchase of Assets. (a) Subject to all of the terms and conditions set forth herein of this Agreement and in reliance upon the representations and warranties contained hereinin this Agreement, at on the Closing, for the consideration specified in Section 4.1Closing Date, the Company will sell, transfer, assign, convey, transfer and deliver to BuyerPurchaser, and Buyer Purchaser will purchase and acquire from the Company, all of the Company's right, title and interest in and to (i) the Business Intellectual Propertypurchase, free and clear of any Liens, all Liens (other than Permitted Liens), (ii) the Transferred Bank Accountsall rights, free and clear of any Liens, other than Permitted Lienstitle, and (iii) interest of the Company in and to all other assetsof the assets and properties of every nature, properties kind, and rights (whether description, tangible or and intangible, whether real, personal personal, or mixed, fixed, whether contingent or otherwise, and wherever located) whether or not reflected on the Company’s books, of the Company or otherwise Related relating to the Business (except for Retained Business, excluding only the Excluded Assets), in each case free and clear of any Liens, other than Permitted Liens, as the same shall may exist on the Closing DateDate (collectively, including the following “Assets”), including, without limitation, all rights, title, and interest of the Company in, to, and under:
(a) All of the Company’s right to lease the extent Related to premises located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ from which the Business (unless otherwise provided):
(i) is currently conducted, which for the avoidance of doubt includes the right to lease all real property Leases set forth on Schedule 2.1(a)(i)leasehold improvements forming part of such premises;
(iib) all accounts, loans and notes receivable (whether current or not current), performance and surety bonds and letters of credit or other similar instruments in favor All tangible assets of the Company, including all fixed assets, equipment, tools, computers, terminals, computer equipment, telephones, telephone systems, machinery, motor vehicles, furniture, office equipment, and furnishings, including, without limitation, the personal property listed on Schedule 2.7, including those in possession of suppliers, customers and other third parties;
(iiic) all inventoriesAll inventories of raw materials, including finished productssupplies, work-in-process, materialsfinished products, goods, spare parts, componentsreplacement and component parts, production stockoffice supplies, accessoriespackaging material, supplies and consigned inventory (similar items, including all such inventories that are held by those in possession of suppliers, customers and other third parties;
(d) All Accounts Receivable;
(e) All Intellectual Property, including, but not limited to, all right, title, and interest in and to the names “M.C. Healthcare Products”, “Rexx”, “Advantage”, and “Maxxum”, all goodwill associated therewith, and all telephone numbers, telecopy numbers, websites, and e-mail addresses;
(f) All designs, artwork, and similar items;
(g) All hardware and software owned, or if not owned, all of the Company’s license rights in licensed hardware and software, used, or held for use in the conduct of the Business and any and all files and data contained on such software;
(h) All customer lists, customer data, e-mail directories, and other customer information relating to the Business;
(i) Except as provided in Section 1.2(a), all contracts, arrangements, licenses, leases, and other agreements (whether oral or written) relating to the Business or any of the Assets, including, without limitation, any right to receive payment pursuant to such contracts, arrangements, licenses, leases, and other agreements;
(j) To the extent transfer is permitted by Applicable Law, all Licenses, including, without limitation, those listed on Schedule 2.14(b);
(ivk) all machineryAll credits, equipmentprepaid rentals, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software (including all enterprise information systems), engineering and design equipment, computer networking equipment and other tangible personal propertyprepaid expenses, together with any rightsdeferred charges, claims advance payments, security deposits, and interests arising out of maintenance 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 thereofprepaid items;
(vl) all ContractsAll interests in any insurance claims, including all refunds, escrows, reserves, or rights to receive payment for products sold indemnity with respect to any of the Assets or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect any of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Date)Assumed Liabilities;
(vim) all credits, advances, prepaid expenses, deposits All claims and retentions held by demands of any nature against third parties, including those held whether by third parties under Contracts;
(vii) all Permits;
(viii) all lock boxes;
(ix) the benefits way of coverage provided by insurance policies of the Company (counterclaim or otherwise, with respect to the Business) in respect ownership, use, function, or value of matters occurring on any of the Assets or prior to the Closing Date as set forth in Section 9.5Assumed Liabilities, regardless of when such claims and demands arise;
(xn) all operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all All books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returnsinvoices, copies of all financial data bases, computer programs, manuals, and accounting data and recordsother materials (in any form or medium), including, without limitation, sales and sales promotional material and data, advertising materials, credit informationpersonnel records, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory booksaccounting records, sales order files, litigation files and other similar propertysupplier lists; provided, rights however, to the extent such books and information;
(xi) the corporate name "StarTrak Systems" and any other names used in connection with the Business;
(xii) all telephone numbers used in connection with the Business;
(xiii) all rights in and records are required to products sold or leased be maintained by the Business Company under Applicable Law, the Company shall retain ownership of such items and products provide Purchaser with a true and complete copy of the Business currently in development;
(xiv) all causes of action, choses in action, lawsuits, judgments, claims, rights under express each original book or implied warranties, guarantees, indemnities and similar rights in favor of the Company, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands of any nature available to or being pursued record retained by the Company;
(xvo) all All goodwill and going concern value attributable to the operation of the Business; and
(xvip) all other assets, properties and rights (other than Retained Assets), including those reflected as assets on the Final Closing Statement. The assets, properties and rights of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals All proceeds of any or all of the foregoing from the date of this Agreement through the Closing Date.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment received or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to receivable after the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract
Sources: Asset Purchase Agreement (Span America Medical Systems Inc)
Sale and Purchase of Assets. (a) Subject to On the terms and subject to the conditions set forth herein and in reliance upon the representations and warranties contained hereinof this Agreement, at the Closing, for the consideration specified Closing referred to in Section 4.12.1 hereof, the Company will shall sell, convey, assign, convey, transfer and deliver to Buyer, and Buyer will purchase shall purchase, acquire and acquire from accept delivery of, all assets and properties owned or Used by the Company in connection with its business, except for (i) the Purchase Price and other rights of the Company under this Agreement, (ii) the Company's corporate minute book and stock records, and (iii) those assets specifically listed on Schedule 1.1
(a) (such specifically listed assets in clauses (i), (ii) and (iii) above being referred to as the "Excluded Assets"), including without limiting the generality of the foregoing:
(i) all cash and cash equivalents and accounts receivable;
(ii) all raw materials, works-in-process, inventories and other materials of the Company wherever located and including all inventory in transit or on order and not yet delivered, and all rights with respect to the processing and completion of any works-in-process of the Company, including the right to collect and receive charges for services performed by the Company with respect thereto;
(iii) all supplies, equipment, vehicles, machinery, furniture, fixtures, leasehold improvements and other tangible property Used by the Company in connection with its business, and the Company's interest as lessee in any leases with respect to any of the foregoing;
(iv) all of the Company's right, title and interest in and to its Contracts, including the Contracts listed or required to be listed on Schedule 3.13(a) or (ic) the Business Intellectual Property, free and clear of any Liens, other than Permitted Liens, hereto;
(ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iiiv) all other assetsproprietary knowledge, properties Trade Secrets, Confidential Information, computer software and rights licenses, formulae, designs and drawings, quality control data, processes (whether tangible secret or intangiblenot), realmethods, personal inventions and other similar know-how or mixedrights Used in the conduct of the Company's business, fixedincluding, contingent or otherwisebut not limited to, the areas of manufacturing, marketing, advertising and wherever located) personnel training and recruitment, together with all other Intangible Rights Used in connection with the Company's business, including all files, manuals, documentation and source and object codes related thereto and all rights of the Company or otherwise Related in and to all Web sites, domain names, tradenames, trademarks and slogans Used in its business, all variants thereof and all goodwill associated therewith; (vi) all utility, security and other deposits and prepaid expenses;
(vii) the Business Company's business as a going concern and its franchises, Permits and other authorizations of Governmental Authorities (except for Retained Assets), in each case free and clear of any Liens, other than Permitted Liens, as the same shall exist on the Closing Date, including the following to the extent Related such Permits and other authorizations of Governmental Authorities are transferable) and third parties, licenses, telephone numbers, customer lists, vendor lists, referral lists and contracts, advertising materials and data, restrictive covenants, choses in action and similar obligations owing to the Business Company from its present and former shareholders, officers, employees, agents and others, together with all books, operating data and records (unless otherwise provided):
(i) all real property Leases set forth on Schedule 2.1(a)(i);
(ii) all accountsincluding financial, loans accounting and notes receivable (whether current or not currentcredit records), performance files, papers, records and surety bonds and letters of credit or other similar instruments in favor data of the Company;
(iiiviii) all inventories, including finished products, work-in-process, materials, parts, components, production stock, accessories, supplies and consigned inventory (including all such inventories that are held by third parties);
(iv) all machinery, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software (including all enterprise information systems), engineering and design equipment, computer networking equipment and other tangible personal property, together with any rights, claims and interests arising out of maintenance 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;
(v) all Contracts, including all rights to receive payment for products sold or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Date);
(vi) all credits, advances, prepaid expenses, deposits and retentions held by third parties, including those held by third parties under Contracts;
(vii) all Permits;
(viii) all lock boxes;
(ix) the benefits of coverage provided by insurance policies of the Company (with respect to the Business) in respect of matters occurring on or prior to the Closing Date as set forth in Section 9.5;
(x) all operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and information;
(xi) the corporate name "StarTrak Systems" and any other names used in connection with the Business;
(xii) all telephone numbers used in connection with the Business;
(xiii) all rights in and to products sold or leased by the Business and products of the Business currently in development;
(xiv) all causes of action, choses in action, lawsuits, judgments, claims, rights under express or implied warranties, guarantees, indemnities and similar rights in favor of the Company, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands of any nature available to or being pursued real property Used by the Company;
(xvix) all goodwill and going concern value of the Businesslease security deposits; and
(xvix) all other assets, properties and rights (other than Retained Assets), including those reflected as assets on the Final Closing Statement. The assets, properties property and rights of every kind or nature Used by the Company in the operation of its business. It is specifically understood and agreed by the parties hereto that the Buyer is acquiring, and Company is selling, all of the tangible and intangible assets attributable to or Used by the Company in its business, except the Excluded Assets. The aforesaid assets and properties to be sold, assigned, conveyed, transferred and delivered to the Buyer pursuant to this Agreement hereunder are herein hereinafter collectively referred to as the "Assets.". The term "Assets" will include all additions and replacements to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals of any of the foregoing from the date of this Agreement through the Closing Date.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract
Sale and Purchase of Assets. (a) Subject to the terms and conditions set forth herein and Except as otherwise provided in reliance upon the representations and warranties contained hereinSection 2.3, at the Closing, for the consideration specified in Section 4.1, the Company will Seller shall sell, assign, convey, transfer and deliver assign to Buyer, and Buyer will shall purchase and acquire from the Company, all of the Company's right, title and interest in and to (i) the Business Intellectual PropertySeller, free and clear of any LiensEncumbrances, other than Permitted Liensall of Seller’s right, (ii) title and interest in, to and under all of the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iii) all other assets, properties and rights (of every kind and nature, including the Lease Agreement, goodwill, and intellectual property, existing on the Closing Date and located at and used solely in connection with the Lisbon Cinemas, whether personal or commercial, tangible or intangible, real, personal or mixed, fixed, contingent in electronic form or otherwise, and wherever locatedwhether or not any of such assets have any value for accounting purposes or are carried or reflected on or specifically referred to in its books or financial statements (collectively, the “Purchased Assets”), which shall include the following:
(a) All furniture, equipment, supplies including concession inventory, computer hardware and software, projectors, projector bulbs, ticketing machines, and point of sale equipment, displays, signage, leasehold improvements (subject, however, to the terms of the Company Lease Agreements), and other fixtures and equipment located in or otherwise Related related to the Cinema and the Business which are owned by the Seller (the “Tangible Assets”), including those assets identified on Schedule 2.1(a);
(b) The Lease Agreement, as more particularly identified on Schedule 2.1(b);
(c) All books, records, manuals, documents, books of account, correspondence, sales reports, literature, brochures, advertising material and the like related to the Business (except for other than accounting records and corporate books and records as defined in Section 2.3 or other Retained Assets), in each case free and clear of any Liens, other than Permitted Liens, as the same shall exist on the Closing Date, including the following to the extent Related to the Business (unless otherwise provided):
(i) all real property Leases set forth on Schedule 2.1(a)(i);
(iid) All rights under warranties, indemnities and all accounts, loans and notes receivable (whether current or not current), performance and surety bonds and letters of credit or other similar instruments in favor of rights against third parties to the Companyextent related to any Purchased Assets;
(iiie) all inventoriesAll insurance benefits, including finished products, work-in-process, materials, parts, components, production stock, accessories, supplies and consigned inventory (including all such inventories that are held by third parties);
(iv) all machinery, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software (including all enterprise information systems), engineering and design equipment, computer networking equipment and other tangible personal property, together with any rights, claims and interests proceeds, arising out of maintenance from or service contracts relating thereto solely to the Business or the breach of Purchased Assets but expressly excluding all insurance benefits except for any express claims arising from Hurricane I▇▇▇▇ on or implied warranty by the manufacturers about August 28, 2011 to September 3, 2011 or sellers of arising from or relating or applying to any such assets or any component part thereofRetained Liabilities ;
(vf) all Contracts, including all All rights to receive payment for products sold or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Date);
(vi) all credits, advances, prepaid expenses, deposits and retentions held by third parties, including those held by third parties under Contracts;
(vii) all Permits;
(viii) all lock boxes;
(ix) the benefits of coverage provided by insurance policies of the Company (with respect to the Business) in respect of matters occurring on or prior to the Closing Date as set forth in Section 9.5;
(x) all operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and information;
(xi) the corporate name "StarTrak Systems" and any other names used in connection with the Business;
(xii) all telephone numbers used in connection with the Business;
(xiii) all rights in and to products sold or leased by the Business and products of the Business currently in development;
(xiv) all causes of action, choses in action, lawsuits, judgments, claims, rights under express or implied warranties, guarantees, indemnities and similar rights in favor of the Company, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands Actions of any nature available to or being pursued by Seller to the Companyextent related to solely the Business or the Purchased Assets, whether arising by way of counterclaim or otherwise, except those rights relating to the Retained Liabilities;
(xvg) all All inventory and supplies, including, without limitation, concession products, candy items and paper goods and other similar items (the “Inventory”), for the Business located at the Cinema as of the Closing Date;
(h) All the contracts, if any, identified by Seller on Schedule 2.1(h) (the “Assumed Contracts”);
(i) All Permits;
(j) All goodwill and going concern value of rights in and to intellectual property, including the Businessname “Lisbon Cinemas” but expressly excluding all rights to the name “O’Neil Cinemas”..
(k) The telephone numbers for the Cinema, and excluding any rights in the Seller’s website; and
(xvil) all other assets, properties and rights (other than Retained Assets), including those reflected as assets on the Final Closing Statement. The assets, properties and rights goodwill of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals of any of the foregoing from the date of this Agreement through the Closing DateBusiness.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract
Sources: Asset Purchase Agreement (Digital Cinema Destinations Corp.)
Sale and Purchase of Assets. (a) Subject to Upon the terms and subject to the conditions set forth herein of this Agreement and in reliance upon consideration of the representations and warranties contained hereinPurchase Price, at the Closing, for the consideration specified in Section 4.1, the Company will sell, assign, convey, shall sell -5 and transfer and deliver to Buyer, and Buyer will shall purchase and acquire from the Company, all of the Company's right, title and interest in and to (i) its properties, business as a going concern, goodwill and assets on the premises of the Business Intellectual Propertyor on the premises of customers relating to the Business, of every kind, nature and description, existing on the Closing Date, whether real, personal or mixed, tangible or intangible, in electronic form or otherwise, and whether or not any of such assets have any value for accounting purposes or are carried or reflected on or specifically referred to in the books or financial statements of the Business, except those assets specifically excluded pursuant to SECTION 2.2, free and clear of any Liens, and all Encumbrances other than Permitted LiensEncumbrances. The properties, business, goodwill and assets to be transferred hereunder (iicollectively, the "PURCHASED ASSETS") shall include, but not be limited to, the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iii) all other assets, properties and rights (whether tangible or intangible, real, personal or mixed, fixed, contingent or otherwise, and wherever located) of the Company or otherwise Related to the Business (except for Retained Assets), in each case free and clear of any Liens, other than Permitted Liens, as the same shall exist on the Closing Date, including the following to the extent Related to the Business (unless otherwise provided):following:
(i) all real property Leases set forth All of the Company's machinery, equipment, tooling, dies, jigs, spare parts and supplies, including the items identified on Schedule 2.1(a)(iSCHEDULE 2.1(i);
(ii) all accounts, loans and notes receivable (whether current or not current), performance and surety bonds and letters of credit or other similar instruments in favor All of the Company;
(iii) all inventories, including finished products's inventory of raw materials, work-in-process, materials, parts, componentssubassemblies and finished goods, production stockwherever located and whether or not obsolete or carried on the Company's books of account, accessoriesincluding the items identified on SCHEDULE 2.1(ii);
(iii) All of the Company's other tangible assets, supplies including office furniture, office equipment and consigned inventory (supplies, computer hardware and software, leasehold improvements and vehicles, including all such inventories that are held by third partiesthe items identified on SCHEDULE 2.1(iii);
(iv) all machinery, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software (including all enterprise information systemsExcept as set forth in SECTION 2.2(iii), engineering all of the Company's records, manuals, documents, books of account, correspondence, sales and design equipmentcredit reports, computer networking equipment customer lists, literature, brochures, advertising materials and other tangible personal property, together with any rights, claims and interests arising out of maintenance 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 thereofsimilar items;
(v) all ContractsAll of the Company's goodwill and rights in and to the name "Energy Recovery Resources" and in any other trade name, trademark, fictitious name or service ▇▇▇▇, or any variant of any of them, and any applications therefor or registrations thereof, and any other forms of Intellectual Property, including all rights to receive payment for products sold or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect of breaches, defaults and other violations thereunder (whether or not arising or asserted before, the items identified on or after the Closing DateSCHEDULE 2.1(v);
(vi) All of the Company's rights under leases for real or personal property and all creditsof the Company's rights under all other leases, advancescontracts, prepaid expensesagreements, deposits purchase and retentions held sale orders, service maintenance contracts and warranties and guaranties given, made or issued by third partiesany contractors, including those held by third parties under Contractssuppliers, manufacturers, installers and the like, and all of the Company's rights in any governmental authorizations, permits, licenses, certifications and similar intangible assets;
(vii) all PermitsAll of the Company's trade and other notes and accounts receivable, advance payments, prepaid items and expenses, rights of offset, credits and claims for refund;
(viii) All of those lots and pieces of ground, together with the buildings and improvements thereon, and all lock boxeseasements, rights and privileges appurtenant thereto, of all real property owned by the Company, all as more particularly set forth in SCHEDULE 3.15;
(ix) the benefits of coverage provided by insurance policies All of the Company (with respect to the Business) in respect of matters occurring on or prior to the Closing Date as set forth in Section 9.5;
(x) all operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and information;
(xi) the corporate name "StarTrak Systems" and any other names used in connection with the Business;
(xii) all telephone numbers used in connection with the Business;
(xiii) all rights in and to products sold or leased by the Business and products of the Business currently in development;
(xiv) all causes of actionCompany's claims, choses in action, lawsuits, causes of action and judgments, claims, rights under express or implied warranties, guarantees, indemnities and similar rights in favor of the Company, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands of any nature available to or being pursued by the Company;
(xv) all goodwill and going concern value of the Business; and
(xvi) all other assets, properties and rights (other than Retained Assets), including those reflected as assets on the Final Closing Statement. The assets, properties and rights of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals of any of the foregoing from the date of this Agreement through the Closing Date.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all All of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior rights to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement)Business.
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract
Sources: Asset Purchase Agreement (Pinnacle Global Group Inc)
Sale and Purchase of Assets. (a) Subject to the terms and conditions set forth herein and in reliance upon the representations and warranties contained herein, at the Closing, for the consideration specified in Section 4.1, the Company Seller will sell, assign, convey, transfer and deliver deliver, and cause Seller Subsidiary to sell, assign, convey, transfer and deliver, to Buyer, and Buyer will purchase and acquire from the CompanySeller and Seller Subsidiary, all of the Company's Seller’s and Seller Subsidiary’s right, title and interest in and to (i) the Business Intellectual Property, free and clear of any Liens, other than Permitted Liens, (ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iii) all other assets, properties and rights (whether tangible or intangible, real, personal or mixed, fixed, contingent or otherwise, and wherever located) of the Company or otherwise Related to the Business (except for Retained Assets), in each case free and clear of any Liens, other than Permitted Liens, as the same shall exist on the Closing Date, including the following to the extent such assets are Related to the Business (unless otherwise provided):Business:
(i) all real property Leases (including land, plants, buildings and improvements) and real property interests (including Leases) set forth on Schedule 2.1(a)(i);
(ii) all accounts, loans and notes receivable (whether current or not currentpast due), performance and surety bonds and letters of credit or other similar instruments in favor of the CompanySeller and/or Seller Subsidiary;
(iii) all inventories, including finished products, work-in-process, materials, parts, components, production stock, accessories, accessories and supplies and consigned inventory (including all such inventories that are held by third parties);
(iv) all machinery, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software (including all enterprise information systems), engineering and design equipment, computer networking equipment and other tangible personal property, together with any rights, claims and interests arising out of maintenance 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;
(v) the Business Intellectual Property owned or licensed by Seller or Seller Subsidiary;
(vi) all Business Software, including the software set forth on Schedule 2.1(a)(vi);
(vii) all computer hardware and computer networking equipment located in the buildings being conveyed or set forth on Schedule 2.1(a)(vii), together with any rights, claims and interests arising out of maintenance 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;
(viii) all Contracts, including all rights to receive payment for products sold or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Date);
(viix) all credits, advances, prepaid expenses, deposits and retentions held by third parties, including those held by third parties under Contracts;
(viix) to the extent legally transferable or assignable, all Permits;
(viiixi) all lock boxesU.K. Bank Accounts and Lockboxes;
(ixxii) the benefits of coverage provided by insurance policies of the Company Seller and Seller Subsidiary (with respect to the Business) in respect of matters occurring on or prior to the Closing Date as set forth in Section 9.58.9 (other than benefits in connection with the claims, causes in action, choses in action, rights of recovery and rights of set-off retained by Seller as set forth on Schedule 2.1(b)(ix)); provided, that Seller shall have no obligation to extend or renew any insurance coverage following the Effective Time, except as otherwise provided in any of the Transaction Documents;
(xxiii) all financial, accounting, operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and information; provided, however, that Seller may retain originals or copies of any such records that are primarily related to, or necessary for the operation of, the Retained Assets or its general corporate, financial, accounting, tax and personnel functions, so long as Seller provides Buyer with copies of any such retained original records;
(xi) the corporate name "StarTrak Systems" and any other names used in connection with the Business;
(xii) all telephone numbers used in connection with the Business;
(xiiixiv) all rights in and to products sold or leased by the Business and products of the Business currently in development;
(xivxv) all causes of action, choses in action, lawsuits, judgments, claims, rights under express or implied warranties, guarantees, indemnities and similar rights in favor of the CompanySeller and/or Seller Subsidiary, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands of any nature available to or being pursued by the CompanySeller and/or Seller Subsidiary;
(xvxvi) Seller’s equity ownership interest in, and all goodwill and going concern value of rights with respect to, the BusinessJoint Venture; and
(xvixvii) all other assets, properties goodwill associated with the Business and rights (other than Retained the Assets), including those reflected as assets on the Final Closing Statement. The assets, properties and rights of the Company Seller and Seller Subsidiary to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "“Assets"”. The term "“Assets" ” will include all additions and replacements to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals of any of the foregoing from the date of this Agreement through the Closing Date.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company Seller and Seller Subsidiary will retain, all of Seller’s and Seller Subsidiary’s right, title and interest in and to the following assets, properties and rights (the “Retained Assets”):
(i) all real property (including land, plants, buildings and improvements) and real property interests (including Leases), other than real property and Leases set forth on Schedule 2.1(a)(i);
(ii) all cash, cash equivalents, funds, certificates of deposit and similar instruments held by Seller or Seller Subsidiary at the Effective Time;
(iii) all bank accounts and lock boxes (other than the U.K. Bank Accounts and Lockboxes);
(iv) all insurance policies, other than the benefits of Occurrence Basis Policies and Claims Made Policies and other rights as described in Section 8.9;
(v) all rights in and to the use of the name, trademark, trade name and service ▇▇▇▇ “▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇” and all corporate symbols and logos related thereto and all names, trademarks, trade names, and service marks which include the words “▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇” or any derivative thereof (other than as provided for in Section 8.8);
(vi) all assets with respect to pension and savings plans of Seller and Seller Subsidiary, including the Seller Retirement Plans, the Seller Savings Plan and the Seller ESP;
(vii) all refunds of Taxes (i) attributable to payments of Taxes made prior to the Effective Time, whether or not any refund claims have been filed prior to the Effective Time, or (ii) for which Seller or Seller Subsidiary has made a payment in respect thereof, including any payment out of the Escrow Fund;
(viii) all benefits of net operating loss carryforwards, carrybacks, credits or other Tax attributes for periods (or portions thereof) up to and including the Closing on the Closing Date (in the case of tax years including the Closing Date, benefits shall be determined on a closing-of-the-books basis through the Closing, except for periodic Taxes (such as real property Taxes) which shall be determined on a daily pro rata basis);
(ix) all claims, causes in action, choses in action, rights of recovery and rights of set-off of any kind against any person to the extent described on Schedule 2.1(b)(ix);
(x) the Intellectual Property set forth on Schedule 2.1(b)(x) (the “Retained Intellectual Property”);
(xi) the Contracts set forth on Schedule 2.1(b)(xi);
(xii) Seller’s and Seller Subsidiary’s corporate charters, qualifications to conduct business as a foreign entity, arrangements with registered agents relating foreign qualifications, taxpayer and other identification numbers, tax returns, stock books, stock ledgers, minute books and corporate seals and other similar documents relating to the organization, maintenance, and existence of Seller and Seller Subsidiary as corporations;
(xiii) all assets primarily used in or primarily related to, arising primarily from or held primarily for use in, Seller’s planetarium, digital theater or laser projector businesses or otherwise necessary for the operation, as presently conducted, of such businesses (other than any such assets that are Related to the Business);
(xiv) all equity ownership interest in Seller Subsidiary and Seller’s and Seller Subsidiary’s respective Affiliates (other than in the Joint Venture); and
(xv) all other assets set forth on Schedule 2.1(b)(xv).
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or (A) result in any significant way impair increase in any payment or change in any term, (B) give rise to any right of amendment, termination, cancellation or acceleration of any right or obligation or to a loss of benefit or (C) grant any repayment or repurchase rights to any Person, which, in the rights case of Buyer thereunder(A), (B) or (C) above, is adverse to Buyer. The Company Seller will, and will cause Seller Subsidiary to, use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right)efforts, and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the CompanySeller and Seller Subsidiary, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rightsobtained, then (1) the Company Seller will, and will cause Seller Subsidiary to, use its commercially reasonable efforts to (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicableBuyer, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereofSeller or Seller Subsidiary; and (2) in consideration of the Company Seller and Seller Subsidiary providing or causing to be provided to Buyer the full benefits thereof, Buyer will use its commercially reasonable efforts to perform and discharge on behalf of Seller and Seller Subsidiary, as the Company case may be, all of the Company's Seller’s or Seller Subsidiary’s liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order Seller will, and will cause Seller Subsidiary to, use its commercially reasonable efforts to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall Seller will continue to use and will cause Seller Subsidiary to continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract
Sources: Asset Purchase Agreement (Evans & Sutherland Computer Corp)
Sale and Purchase of Assets. (a) Subject to the terms and conditions set forth herein and in reliance upon the representations and warranties contained herein, at the Closing, for the consideration specified in Section 4.1of this Agreement, the Company Sellers will sell, assign, convey, transfer and deliver convey to the Buyer, and the Buyer will purchase purchase, acquire and acquire accept from the CompanySellers, free and clear of all Encumbrances other than Permitted Encumbrances, all of the Company's Sellers’ right, title title, and interest in and to (i) the Business Intellectual Property, free and clear of any Liens, other than Permitted Liens, (ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iii) all other assets, properties and rights (of the Sellers, of every type and description whether tangible or intangible, real, personal or mixed, fixed, contingent or otherwise, and wherever located) of the Company or otherwise Related to the Business mixed (except for Retained Assetsbut excluding real), in each case free and clear of any Lienstangible and, other than Permitted Liens, as the same shall exist on the Closing Date, including the following to the extent Related specifically described in this Section 2.1, intangible, whether or not reflected on the books of the Sellers, that exist as of the Closing Date and exclusively relate to the Business Operations (unless otherwise provided):other than the Excluded Assets) (the “Purchased Assets”), including, without limitation:
(i) all real property Leases set forth on Schedule 2.1(a)(i);
(ii) all accounts, loans and notes receivable (whether current or not current), performance and surety bonds and letters of credit or other similar instruments in favor of the Company;
(iii) all inventories, including finished products, work-in-process, materials, parts, components, production stock, accessories, supplies and consigned inventory (including all such inventories that are held by third parties);
(iva) all machinery, equipment, toolingparts, vehiclestools, furniture and fixtures, leasehold improvementsfurniture, plant and office equipment, test equipmentcomputer hardware, laboratory equipment and supplies, repair partsmotor vehicles, repair stock, tools, computer hardware and software (including all enterprise information systems), engineering and design equipment, computer networking equipment fork-lift trucks and other rolling stock and other items of tangible personal propertyproperty (other than Inventory) located at the Real Property, together with any rights, claims and interests arising out of maintenance or service contracts relating thereto or including without limitation those set forth on Schedule 2.1(a) (the breach of any express or implied warranty by the manufacturers or sellers of any such assets or any component part thereof“Tangible Personal Property”);
(vb) all ContractsAll Accounts Receivable owing to each Seller, including the benefit of all rights to receive payment for products sold or services renderedcollateral, security, guaranties, and similar undertakings received or held in connection therewith and any claim, remedy or other right related to receive goods and servicesthe foregoing, pursuant including, without limitation (to Contracts and to assert claims and to take other actions in respect of breaches, defaults and other violations thereunder (whether or not arising or asserted before, the extent that they remain outstanding on or after the Closing Date), those accounts set forth on Schedule 2.1(b), which shall be updated as of the Closing Date and included with the Estimated Closing Statement;
(vic) all credits, advances, prepaid expenses, deposits and retentions held by third parties, including those held by third parties under Contracts;
(vii) all Permits;
(viii) all lock boxes;
(ix) the benefits of coverage provided by insurance policies of the Company (with respect to the Business) in respect of matters occurring on or prior to the Closing Date Except as set forth in Section 9.52.2(c) and Section 2.2(d), all tire and tire-related inventory (e.g., valve stems, balancing weights, etc.), finished goods, raw materials, work in progress, packaging, supplies, and other related inventories located at (or in transit to) the Real Property (the “Inventory”);
(xd) all operating, design, manufacturing, test All rights and other data interests in and records (in each case, in whatever form or mediumto the Contracts, including electronic mediathe Leases, set forth on Schedule 2.1(d) (the “Assigned Contracts”),
(e) All Intellectual Property set forth on Schedule 2.1(e) (the “Acquired Intellectual Property”);
(f) originals, including or where not available, copies, of all books, books and records, notesincluding, shipping recordsbut not limited to, sale books of account, ledgers and purchase correspondence and filesgeneral, copies of Tax Returns, copies of all financial and accounting data and records, sales machinery and sales promotional material and data, advertising materials, credit information, cost and pricing informationequipment maintenance files, customer and lists, customer purchasing histories, price lists, distribution lists, supplier lists, business plansproduction data, reference catalogs, payroll and personnel quality control records and procedures, blue-printscustomer complaints and inquiry files, research and development files, records and data and laboratory books(including all correspondence with any Governmental Body), sales order filesmaterial and records (including pricing history, litigation total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys and literature, material and research and files exclusively relating to the Operations and other similar property, rights located at the Real Property (“Books and informationRecords”);
(xig) All Permits, including Environmental Permits, held by Sellers and exclusively relating to the corporate name "StarTrak Systems" conduct of the Operations, in each case to the extent such Permits may be transferred under the terms thereof and any other names used in connection with applicable Law (such Permits that may be transferred, the Business“Acquired Permits”);
(xiih) all telephone numbers used in connection with the Business;
(xiii) all All rights in and of each Seller to products sold or leased by the Business and products of the Business currently in development;
(xiv) all refunds, causes of action, choses in action, lawsuits, judgments, claimsclaims and demands of any nature and all counterclaims, rights under express of setoff, rights of indemnification and affirmative defenses to any claims from customers relating to the Operations (except to the extent relating to any Excluded Asset or implied warrantiesExcluded Liability);
(i) All insurance benefits, guaranteesincluding rights and proceeds, indemnities and similar rights in favor arising from or relating to the Operations, the Purchased Assets or the Assumed Liabilities, to the extent any of the Companyforegoing are the subject of an insurable event under Sellers’ insurance policies occurring prior to Closing (except to the extent relating to any Excluded Asset or Excluded Liability);
(j) All warranties and guarantees received from vendors, suppliers or manufacturers with respect to the Purchased Assets;
(k) All prepaid expenses (including rent, utilities, and common area maintenance payments), credits, advance payments, security deposits (including deposits under the Leases), refunds, rights of recovery, rights of set-off, and rights of subrogation recoupment relating exclusively to the Operations or the Purchased Assets, as set forth on Schedule 2.1(k), which shall be updated as of the Closing Date and all other rights and demands of any nature available to or being pursued by included with the Company;Estimated Closing Statement (collectively, the “Prepayments”); and
(xvl) all All customer relationships, goodwill and the going concern value of the Business; and
(xvi) all other assets, properties and rights (other than Retained Assets), including those reflected as assets on the Final Closing Statement. The assets, properties and rights of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals of any of the foregoing from the date of this Agreement through the Closing DateWholesale Tire Operations.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract
Sale and Purchase of Assets. (a) Subject to the terms Except as otherwise provided in Sections 2.2 and conditions set forth herein and in reliance upon the representations and warranties contained herein2.3, at the Closing, for the consideration specified in Section 4.1, the Company will Sellers shall sell, assign, convey, transfer and deliver assign to BuyerBuyers, and Buyer will Buyers shall purchase and acquire from the CompanySellers, all of Sellers’ properties and business as a going concern, and goodwill and tangible or intangible assets of every kind, nature and description existing on the Company's rightClosing Date located at or used in connection with either of the Cinemas, title whether personal, in electronic form or otherwise, and interest whether or not any of such assets have any value for accounting purposes or are carried or reflected on or specifically referred to in and to (i) the Business Intellectual Propertyits books or financial statements, free and clear of any Liensall Encumbrances (collectively, other than Permitted Liensthe “Purchased Assets”). Without limiting the foregoing, (ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iii) all other assets, properties and rights (whether tangible or intangible, real, personal or mixed, fixed, contingent or otherwise, and wherever located) of Purchased Assets shall include the Company or otherwise Related to the Business (except for Retained Assets), in each case free and clear of any Liens, other than Permitted Liens, as the same shall exist on the Closing Date, including the following to the extent Related to the Business (unless otherwise provided):following:
(i) all real property Leases set forth All of Sellers’ tangible assets, including office furniture, office equipment and supplies, computer hardware and software, projectors, projector bulbs, ticketing machines, leasehold improvements, and other fixtures and equipment on Schedule 2.1(a)(i)or related to the Real Estate or related to the Business;
(ii) all accountsAll of Sellers’ books, loans records, manuals, documents, books of account, correspondence, sales reports, literature, brochures, advertising material and notes receivable the like related to the Business (whether current or not currentother than accounting records and corporate books and records as defined in Section 2.3), performance and surety bonds and letters of credit or other similar instruments in favor of the Company;
(iii) all inventories, including finished products, work-in-process, materials, parts, components, production stock, accessories, supplies and consigned inventory (including all such inventories that are held by third parties);
(iv) all machinery, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software (including all enterprise information systems), engineering and design equipment, computer networking equipment and other tangible personal property, together with any rights, claims and interests arising out of maintenance 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;
(v) all Contracts, including all rights to receive payment for products sold or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Date);
(vi) all credits, advances, All prepaid expenses, deposits and retentions held by third partiescredits, including those held by third parties under Contracts;
(vii) all Permits;
(viii) all lock boxes;
(ix) the benefits of coverage provided by insurance policies of the Company (with respect to the Business) in respect of matters occurring on or prior to the Closing Date as set forth in Section 9.5;
(x) all operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and information;
(xi) the corporate name "StarTrak Systems" and any other names used in connection with the Business;
(xii) all telephone numbers used in connection with the Business;
(xiii) all rights in and to products sold or leased by the Business and products of the Business currently in development;
(xiv) all causes of action, choses in action, lawsuits, judgmentsadvance payments, claims, rights under express or implied warrantiessecurity, guarantees, indemnities and similar rights in favor of the Companyrefunds, rights of recovery, rights of set-off, rights of subrogation recoupment, deposits, charges, sums and fees (including any such item relating to the payment of Taxes);
(iv) All of Sellers’ rights under warranties, indemnities and all other similar rights against third parties to the extent related to any Purchased Assets;
(v) All insurance benefits, including rights and demands proceeds, arising from or relating to the Business or the Purchased Assets;
(vi) All rights to any Actions of any nature available to or being pursued by Sellers to the Companyextent related to the Business or the Purchased Assets, whether arising by way of counterclaim or otherwise;
(xvvii) all All of Sellers’ inventory and supplies, including concession products, candy items and paper goods for the Business;
(viii) All of Sellers’ p▇▇▇▇ cash on hand at the Cinemas, if any; (ix) All of Sellers’ rights under the Assumed Contracts, if any; (x) All of Sellers’ rights under the Permits;
(xi) All of Sellers’ goodwill and going concern value rights in and to the names “Rialto” and “Cranford”;
(xii) Sellers’ rights to the telephone numbers for locations of the Cinemas; and (xiii) The goodwill of the Business; and
(xvi) all other assets, properties and rights (other than Retained Assets), including those reflected as assets on the Final Closing Statement. The assets, properties and rights of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals of any of the foregoing from the date of this Agreement through the Closing Date.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract
Sources: Asset Purchase Agreement (Digital Cinema Destinations Corp.)
Sale and Purchase of Assets. (a) Subject to the terms and conditions set forth herein and in reliance upon of this Agreement, effective as of the representations and warranties contained herein, at the Closing, for the consideration specified Closing Time (as defined in Section 4.13.1(a)), the Company will Seller shall sell, assign, convey, transfer and deliver to Buyer, and Buyer will shall purchase and acquire from Seller, for the Companyconsideration specified in Section 2.1, all of the CompanySeller's right, title and interest in and to (i) all of the Business Intellectual Property, free and clear of any Liens, other than Permitted Liens, (ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iii) all other assets, goodwill, rights and properties owned by Seller and rights (used primarily in connection with the conduct of the Princeton Business as a going concern, as the same may exist at the Closing Time, whether tangible or intangible, real, personal or mixed, fixed, contingent accrued or otherwise, (collectively, the "Princeton Assets"), including, without limitation, all of Seller's right, title and wherever located) of the Company or otherwise Related interest in and to the Business (except for Retained Assets), in each case free and clear of any Liens, other than Permitted Liensfollowing, as the same shall may exist on at the Closing Date, including the following to the extent Related to the Business (unless otherwise provided):Time:
(i) all real property Leases set forth on Schedule 2.1(a)(imachinery, equipment, vehicles, office furniture, furnishings, tools, leasehold improvements, and other tangible property, including, without limitation, those items listed in Section 1.1(a)(i) of the disclosure statement prepared by Seller and attached hereto (the "Disclosure Statement");
(ii) all accountsinventories of finished goods, loans and notes receivable (whether current or not current), performance and surety bonds and letters of credit or other similar instruments in favor of the Company;
(iii) all inventories, including finished productsraw materials, work-in-process, spare parts, replacement and component parts (including inventories held by customers on a consignment basis) and office, packaging and other supplies;
(iii) all accounts receivables, prepaid expenses and other current assets (other than cash and cash equivalents) of Seller arising solely from the ownership and operation of the Princeton Business;
(iv) all Intellectual Property Rights (as defined in Section 4.17), including, without limitation, all Patent Rights (as defined in Section 4.17) and the right to the names "Princeton," "▇▇▇▇ Aap," and "Piggyback";
(v) subject to Section 1.1(b), all contracts, leases, commitments, instruments, guarantees, bids, orders, proposals and other agreements, whether written or oral, to which Seller or any predecessor in interest is a party primarily in connection with the Princeton Business immediately prior to the Closing Time, including, without limitation, those agreements to purchase materials, partscontracts for services or to provide products listed in Section 4.11 of the Disclosure Statement, componentsbut excluding all corporate-wide purchasing arrangements which relate generally to the Princeton Business and other divisions or business units of Seller or any of its Affiliates (as defined in Section 11.9) and any other arrangements with other divisions or business units of Seller or any of its Affiliates;
(vi) all licenses, production stockpermits, accessoriesfranchises, supplies certificates of authority or orders, certificates of occupancy, building, safety, fire and consigned inventory health approval, or any waiver of the foregoing (collectively, "Permits"), issued by any Governmental Authority (as defined in Section 4.15(b)), including, without limitation, those Permits listed in Section 1.1(a)(vi) of the Disclosure Statement;
(vii) all business records (other than personnel records unless consented to by the relevant employees), files, ledgers, documents, correspondence, lists, plans, drawings, creative materials, advertising and promotional materials, studies, reports or other printed or written materials used or held for use primarily in connection with the Princeton Business;
(viii) all Owned Property (as defined in Section 4.16);
(ix) all computer software and programs including, without limitation, executable code, source code, graphical user interfaces, databases, all associated documentation, whether electronic or paper copied form, which relate primarily to the Princeton Business; and
(x) all prepaid rent, utilities, downpayments and/or deposits from customers, and any other deposits and/or prepaid items applicable primarily to the Princeton Business.
(b) The Princeton Assets to be sold and transferred by Seller at the Closing Time shall not include:
(i) cash, cash deposits and other cash equivalents, including all such inventories bank accounts;
(ii) tax refunds;
(iii) any assets located at the facilities of the Princeton Business that are held not owned by Seller, which assets are identified in Section 1.1(b)(iii) of the Disclosure Statement;
(iv) all rights of Seller under and pursuant to this Agreement;
(v) any property, casualty, workers' compensation or other insurance policy or related insurance service contract relating to Seller or any of its Affiliates, and any rights of Seller under any insurance policy or contract, including, but not limited to, rights to any cancellation value;
(vi) proprietary or confidential non-technical business information, books, files, papers, records, data and policies of Seller or any of its Affiliates that do not relate primarily to and are not material to continuing the operation of the Princeton Business, including proprietary business management software used by Seller or any of its Affiliates, such as the corporate directories, management procedures and guidelines, proprietary databases, accounting and financial reporting formats, systems and procedures, instructions and organization manuals;
(vii) any and all assets, rights and properties of Seller or any of its Affiliates other than those used by the Princeton Business in connection with the ownership and operation of the Princeton Business;
(viii) subject to Section 4.17, all "Terex" marks, including any and all trademarks or service marks, trade names, registered and unregistered designs, slogans or other like property or including the name "Terex," the Terex ▇▇▇▇ and/or logo, and any derivatives thereof; and
(ix) any accounts receivable that are written off in accordance with the principles set forth on Exhibit A hereto (such principles are referred to hereinafter as "Closing GAAP").
(c) To the extent that any of the Princeton Assets are non-assignable or non-transferable to Buyer, or non-assignable or non-transferable without the consent of a third partiesparty, or shall be subject to any option in any third party by virtue of a request for permission to assign or transfer by reason of or pursuant to this Agreement or the transactions contemplated hereby, this Agreement shall not constitute a contract to assign or transfer the same if an attempted assignment or transfer would (i) constitute a breach thereof or (ii) create rights in others not desired by Buyer. If Seller shall have failed to procure consent to any such assignment or transfer or waiver of such option prior to the Closing Time, Seller shall use its best efforts (which shall not include the obligation to pay money or commence a legal action) to make the use and benefit of such Princeton Asset available to Buyer to the same extent, as nearly as may be possible, as if such impediment to assignment or transfer did not exist. The provisions of this Section 1.1(c) shall not in any way limit Buyer's rights under this Agreement in the event that the Closing condition set forth in Section 7.1(i) is not satisfied.
(d) Except as provided below in this Section 1.1(d) and subject to Section 1.1(e), effective as of the Closing Time, Buyer shall assume and become responsible for, and will thereafter pay, perform and discharge when due all liabilities and obligations of Seller arising out of or relating to the Princeton Assets, the Princeton Business, or the operation or ownership by Seller (or any of its predecessors) of the Princeton Business, whether accrued, absolute, contingent or otherwise (collectively, the "Assumed Princeton Liabilities"). The Assumed Princeton Liabilities shall include, without limitation, the following liabilities of Seller with respect to the Princeton Business: (i) all of the obligations and liabilities of the Princeton Business reflected on the Interim Balance Sheet (as defined in Section 4.8) which have not been satisfied prior to the Closing Time, except for obligations and liabilities relating to intercompany receivables or intercompany debt (the liability for such intercompany receivables or intercompany debt being expressly excluded from the liabilities assumed by Buyer under this Agreement); (ii) all of the obligations and liabilities of the Princeton Business arising in the ordinary course of business between the date of the Interim Balance Sheet and the Closing Time, except for liabilities relating to intercompany receivables or intercompany debt (the liability for such intercompany receivables or intercompany debt being expressly excluded from the liabilities assumed by Buyer under this Agreement); (iii) liabilities and obligations of Seller (relating to the Princeton Business) under the contracts listed in Section 1.1(d) of the Disclosure Statement, but only to the extent required to be paid, performed or discharged after the Closing Time; (iv) liabilities and obligations of Seller with respect to the employees of the Princeton Business which Buyer has agreed to assume pursuant to this Agreement, excluding obligations of Seller under the Terex Plans (as defined in Section 6.10) or under the "Seller Plans," as defined in that certain Asset Purchase and Sale Agreement dated as of September 15, 1999 by and among Teledyne, Inc., Teledyne Princeton, Inc., ▇▇▇▇ USA, Inc., Teledyne GmbH and Seller (the "1999 Purchase Agreement"); (v) liabilities or obligations that are based upon products liability for products manufactured or sold by Seller through the Princeton Business after the closing of the transactions contemplated by the 1999 Purchase Agreement (the "1999 Closing"), except for such liabilities or obligations that constitute Excluded Liabilities pursuant to Section 1.1(e); (vi) all other debts, liabilities and obligations arising out of or relating to events or transactions after the Closing Time in connection with the operation of the Princeton Business or use of the Princeton Assets by Buyer, but only to the extent not included in the Excluded Liabilities pursuant to Section 1.1(e); (vii) the liabilities and obligations of Seller under the 1999 Purchase Agreement, but only to the extent such liabilities and obligations under the 1999 Purchase Agreement constitute liabilities described in subsections (i) through (vi) of this Section 1.1(d); (viii) any severance claims made by Seller's employees working in the Princeton Business who are employed by Buyer after the Closing Time and are terminated by Buyer within 120 days after the Closing Date, except to the extent such claims are based on a contract right or on a severance policy of Seller (the liability for any such claims based on a contract right or severance policy of Seller being expressly excluded from the liabilities assumed by Buyer under this Agreement); (ix) liabilities or obligations under Environmental Laws (as defined in Section 4.18) which are caused after the 1999 Closing; and (x) liabilities and obligations of the Princeton Business reflected on the Closing Balance Sheet (as defined in Section 2.3(a)). Buyer understands and agrees that, from and after the Closing Time, neither Seller nor any of its Affiliates including, without limitation, Powerscreen International plc and PPM Deutschland GmbH, shall have any liability or responsibility for any of the Assumed Princeton Liabilities, except only as contemplated by Section 9.2(e).
(e) Notwithstanding anything contained in this Agreement to the contrary, Buyer shall not assume, and shall not be deemed to have assumed, any of the following obligations or liabilities of Seller or of any Affiliate or predecessor in interest of Seller, whether accrued, absolute, contingent or otherwise:
(i) liabilities or obligations for Federal, state or local income taxes payable by reason of or from the sale and purchase of the Princeton Assets pursuant to this Agreement;
(ii) any liabilities or obligations under the Terex Plans (as defined in Section 6.10) or the "Seller Plans" (as defined in the 1999 Purchase Agreement);
(iii) any liabilities or obligations with respect to taxes arising from the ownership or use of the Princeton Assets and operation of the Princeton Business prior to the Closing Time, except to the extent accrued on the Closing Balance Sheet on a basis consistent with the 1999 Balance Sheet (as defined in Section 4.8) and the Interim Balance Sheet (as defined in Section 4.8);
(iv) any liabilities or obligations under Environmental Laws (as defined in Section 4.18) which were caused prior to the 1999 Closing, and any and all machinery, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software liabilities or obligations under Environmental Laws which do not relate to operations at the Owned Property or Leased Property (including all enterprise information systemseach as defined in Section 4.16), engineering and design equipment, computer networking equipment and other tangible personal property, together with any rights, claims and interests arising out of maintenance 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;
(v) all Contracts, including all rights any liabilities or obligations not related to receive payment for products sold the ownership of the Princeton Assets or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect operation of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Date)Princeton Business;
(vi) all creditssubject to the terms, advancesconditions and limitations of this Agreement, prepaid expensesany liabilities, deposits costs and retentions held expenses related to the transactions contemplated by third parties, including those held by third parties under Contractsthis Agreement;
(vii) all Permitsany liabilities or obligations with respect to the litigation described in Section 4.15 of the Disclosure Statement and any other litigation not described in Section 4.15 of the Disclosure Statement which is pending as of the Closing Time;
(viii) all lock boxesany liabilities based upon products liability related to products manufactured and sold prior to the 1999 Closing or sent out into the stream of commerce prior to the 1999 Closing;
(ix) any liabilities or obligations that (A) are based upon products liability for products manufactured or sold after the benefits of coverage provided by insurance policies of the Company (with respect to the Business) in respect of matters occurring on or 1999 Closing and prior to the Closing Date as set forth in Section 9.5Time and (B) are based on accidents which occurred after the 1999 Closing and prior to the Closing Time;
(x) all operating, design, manufacturing, test liabilities and other data and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and informationobligations under the 1999 Purchase Agreement which do not constitute Assumed Princeton Liabilities;
(xi) any liabilities related to the corporate name "StarTrak Systems" and noncompliance by the parties hereto with any other names used in connection with the Business;applicable bulk transfer law; and
(xii) all telephone numbers used in connection with to the Business;
(xiii) all rights in and to products sold or leased by the Business and products of the Business currently in development;
(xiv) all causes of action, choses in action, lawsuits, judgments, claims, rights under express or implied warranties, guarantees, indemnities and similar rights in favor of the Company, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands of any nature available to or being pursued by the Company;
(xv) all goodwill and going concern value of the Business; and
(xvi) all other assets, properties and rights (other than Retained Assets), including those reflected as assets on the Final Closing Statement. The assets, properties and rights of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements to any of the items extent not already described in this Section 2.1(a) 1.1(e), those liabilities and obligations expressly excluded from the date definition of this Agreement through the Closing DateAssumed Princeton Liabilities in subsections (i), (ii), (iii), (iv), (v), (vi), (vii) and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals (viii) of any of the foregoing from the date of this Agreement through the Closing Date.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunderSection 1.1(d). The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), excluded liabilities and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in this Section 3.1(a1.1(e) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk none of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed assumed by Buyer) are collectively referred to be a Retained Asset/Retained Liabilityhereinafter as the "Excluded Liabilities."
Appears in 1 contract
Sale and Purchase of Assets. (a) Subject to the terms and conditions set forth herein and in reliance upon of this Agreement, effective as of the representations and warranties contained herein, at the Closing, for the consideration specified Closing Time (as defined in Section 4.13.1(a)), the Company will Seller shall sell, assign, convey, transfer and deliver to Buyer, and Buyer will shall purchase and acquire from Seller, for the Companyconsideration specified in Section 2.1, all of the CompanySeller's right, title and interest in and to (i) all of the Business Intellectual Property, free and clear of any Liens, other than Permitted Liens, (ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iii) all other assets, goodwill, rights and properties owned by Seller and rights (used primarily in connection with the conduct of the German Truck-Mounted Business as a going concern, as the same may exist at the Closing Time, whether tangible or intangible, real, personal or mixed, fixed, contingent accrued or otherwise, (collectively, the "German Truck-Mounted Assets"), including, without limitation, all of Seller's right, title and wherever located) of the Company or otherwise Related interest in and to the Business (except for Retained Assets), in each case free and clear of any Liens, other than Permitted Liensfollowing, as the same shall may exist on at the Closing Date, including the following to the extent Related to the Business (unless otherwise provided):Time:
(i) all real property Leases set forth on Schedule 2.1(a)(imachinery, equipment, vehicles, office furniture, furnishings, tools, leasehold improvements, and other tangible property, including, without limitation, those items listed in Section 1.1(a)(i) of the disclosure statement prepared by Seller and attached hereto (the "Disclosure Statement");
(ii) all accountsinventories of finished goods, loans spare parts, replacement and notes receivable component parts (whether current or not currentincluding inventories held by customers on a consignment basis), performance and surety bonds office, packaging and letters of credit or other similar instruments in favor of the Companysupplies;
(iii) all inventoriesaccunts receivables, prepaid expenses and other current assets (other than cash and cash equivalents) of Seller arising solely from the ownership and operation of the German Truck-Mounted Business;
(iv) all Intellectual Property Rights (as defined in Section 4.17), including, without limitation, all Patent Rights (as defined in Section 4.17) and any and all of the rights of Seller to the name "▇▇▇▇ Aap";
(v) subject to Section 1.1(b), all contracts, leases, commitments, instruments, guarantees, bids, orders, proposals and other agreements, whether written or oral, to which Seller or any predecessor in interest is a party primarily in connection with the German Truck-Mounted Business immediately prior to the Closing Time, including, without limitation, those agreements to purchase materials, contracts for services or to provide products listed in Section 4.11 of the Disclosure Statement, but excluding all corporate wide purchasing arrangements which relate generally to the German Truck-Mounted Business and other divisions or business units of Terex Corporation ("Terex") or any of its Affiliates (as defined in Section 11.9) and any other arrangements with other divisions or business units of Terex or any of its Affiliates;
(vi) all licenses, permits, franchises, certificates of authority or orders, certificates of occupancy, building, safety, fire and health approval, or any waiver of the foregoing (collectively, "Permits"), issued by any Governmental Authority (as defined in Section 4.15(b)), including, without limitation, those Permits listed in Section 1.1(a)(vi) of the Disclosure Statement;
(vii) all business records (other than personnel records unless consented to by the relevant employees), files, ledgers, documents, correspondence, lists, plans, drawings, creative materials, advertising and promotional materials, studies, reports or other printed or written materials used or held for use primarily in connection with the German Truck-Mounted Business;
(viii) all computer software and programs including, without limitation, executable code, source code, graphical user interfaces, databases, all associated documentation, whether electronic or paper copied form, which relate primarily to the German Truck-Mounted Business; and
(ix) all prepaid rent, utilities, downpayments and/or deposits from customers, and any other deposits and/or prepaid items applicable primarily to the German Truck-Mounted Business.
(b) The German Truck-Mounted Assets to be sold and transferred by Seller at the Closing Time shall not include:
(i) cash, cash deposits and other cash equivalents, including finished products, workall bank accounts;
(ii) tax refunds;
(iii) any assets located at the facilities of the German Truck-in-process, materials, parts, components, production stock, accessories, supplies and consigned inventory (including all such inventories Mounted Business that are held not owned by Seller, which assets are identified in Section 1.1(b)(iii) of the Disclosure Statement;
(iv) all rights of Seller under and pursuant to this Agreement;
(v) any property, casualty, workers' compensation or other insurance policy or related insurance service contract relating to Seller or any of its Affiliates, and any rights of Seller under any insurance policy or contract, including, but not limited to, rights to any cancellation value;
(vi) proprietary or confidential non technical business information, books, files, papers, records, data and policies of Seller or any of its Affiliates that do not relate primarily to and are not material to continuing the operation of the German Truck-Mounted Business, including proprietary business management software used by Seller or any of its Affiliates, such as the corporate directories, management procedures and guidelines, proprietary databases, accounting and financial reporting formats, systems and procedures, instructions and organization manuals;
(vii) any and all assets, rights and properties of Seller or any of its Affiliates other than those used by Seller in connection with the ownership and operation of the German Truck-Mounted Business;
(viii) subject to Section 4.17, all "Terex" marks, including any and all trademarks or service marks, trade names, registered and unregistered designs, slogans or other like property or including the name "Terex," the Terex ▇▇▇▇ and/or logo, and any derivatives thereof; and
(ix) any accounts receivable that are written off in accordance with the principles set forth on Exhibit A hereto (such principles are referred to hereinafter as "Closing GAAP").
(c) To the extent that any of the German Truck-Mounted Assets are non assignable or non transferable to Buyer, or non assignable or non transferable without the consent of a third partiesparty, or shall be subject to any option in any third party by virtue of a request for permission to assign or transfer by reason of or pursuant to this Agreement or the transactions contemplated hereby, this Agreement shall not constitute a contract to assign or transfer the same if an attempted assignment or transfer would (i) constitute a breach thereof or (ii) create rights in others not desired by Buyer. If Seller shall have failed to procure consent to any such assignment or transfer or waiver of such option prior to the Closing Time, Seller shall use its best efforts (which shall not include the obligation to pay money or commence a legal action) to make the use and benefit of such German Truck-Mounted Asset available to Buyer to the same extent, as nearly as may be possible, as if such impediment to assignment or transfer did not exist. The provisions of this Section 1.1(c) shall not in any way limit Buyer's rights under this Agreement in the event that the Closing condition set forth in Section 7.1(i) is not satisfied.
(d) Except as provided below in this Section 1.1(d) and subject to Section 1.1(e), effective as of the Closing Time, Buyer shall assume and become responsible for, and will thereafter pay, perform and discharge when due all liabilities and obligations of Seller arising out of or relating to the German Truck-Mounted Assets, the German Truck-Mounted Business, or the operation or ownership by Seller (or any of its predecessors) of the German Truck-Mounted Business, whether accrued, absolute, contingent or otherwise (collectively, the "Assumed German Liabilities"). The Assumed German Liabilities shall include, without limitation, the following liabilities of Seller with respect to the German Truck-Mounted Business: (i) all of the obligations and liabilities of the German Truck-Mounted Business reflected on the Interim Balance Sheet (as defined in Section 4.8) which have not been satisfied prior to the Closing Time, except for obligations and liabilities relating to intercompany receivables or intercompany debt (the liability for such intercompany receivables or intercompany debt being expressly excluded from the liabilities assumed by Buyer under this Agreement); (ii) all of the obligations and liabilities of the German Truck-Mounted Business arising in the ordinary course of business between the date of the Interim Balance Sheet and the Closing Time, except for liabilities relating to intercompany receivables or intercompany debt (the liability for such intercompany receivables or intercompany debt being expressly excluded from the liabilities assumed by Buyer under this Agreement); (iii) liabilities and obligations of Seller (relating to the German Truck-Mounted Business) under the contracts listed in Section 1.1(d) of the Disclosure Statement, but only to the extent required to be paid, performed or discharged after the Closing Time; (iv) liabilities or obligations that are based upon products liability for products sold by Seller through the German Truck-Mounted Business after the closing of the transactions contemplated by that certain Asset Purchase and Sale Agreement dated as of September 15, 1999 by and among Teledyne, Inc., Teledyne Princeton, Inc., ▇▇▇▇ USA, Inc., Teledyne GmbH and Seller (the "1999 Purchase Agreement"), except for such liabilities or obligations that constitute Excluded German Liabilities pursuant to Section 1.1(e); (v) all other debts, liabilities and obligations arising out of or relating to events or transactions after the Closing Time in connection with the operation of the German Truck-Mounted Business or use of the German Truck-Mounted Assets by Buyer, but only to the extent not included in the Excluded German Liabilities pursuant to Section 1.1(e); (vi) the liabilities and obligations of Seller under the 1999 Purchase Agreement, but only to the extent such liabilities and obligations under the 1999 Purchase Agreement constitute liabilities described in subsections (i) through (v) of this Section 1.1(d); (vii) with respect to each Employment Contract (as defined in Section 6.10) in force as of the Closing Time, all obligations and liabilities of the employer arising under such Employment Contract after the Closing Time; (viii) any severance claims made by Seller's employees working in the German Truck Mounted Business who are employed by Buyer after the Closing Time and are terminated by Buyer within 120 days after the Closing Date, except to the extent such claims are based on a contract right or on a severance policy of Seller (the liability for any such claims based on a contract right or a severance policy of Seller being expressly excluded from the liabilities assumed by Buyer under this Agreement), (ix) liabilities or obligations under Environmental Laws (as defined in Section 4.18) which are caused after the closing of the transactions contemplated by the 1999 Purchase Agreement; and (x) liabilities and obligations of the German Truck-Mounted Business reflected on the Closing Balance Sheet (as defined in Section 2.3(a)). Buyer understands and agrees that, from and after the Closing Time, neither Seller nor any of its Affiliates including, without limitation, Terex, Powerscreen International plc and Terex B.V., shall have any liability or responsibility for any of the Assumed German Liabilities, except only as contemplated by Section 9.2(e).
(e) Notwithstanding anything contained in this Agreement to the contrary, Buyer shall not assume, and shall not be deemed to have assumed, any of the following obligations or liabilities of Seller or of any Affiliate or predecessor in interest of Seller, whether accrued, absolute, contingent or otherwise:
(i) liabilities or obligations for income taxes payable by reason of or from the sale and purchase of the German Truck-Mounted Assets pursuant to this Agreement;
(ii) except only as provided in Section 1.1(d)(vii), (A) any and all liabilities or obligations under the employee benefit plans, programs, policies and arrangements sponsored or maintained by Seller for its employees and (B) any and all liabilities or obligations under the "Seller Plans" (as defined in the 1999 Purchase Agreement);
(iii) any liabilities or obligations with respect to Taxes arising from the ownership or use of the German Truck-Mounted Assets and operation of the German Truck-Mounted Business prior to the Closing Time, except to the extent accrued on the Closing Balance Sheet on a basis consistent with the 1999 Balance Sheet (as defined in Section 4.8) and the Interim Balance Sheet (as defined in Section 4.8);
(iv) any liabilities or obligations under Environmental Laws (as defined in Section 4.18) which were caused prior to the 1999 Closing, and any and all machinery, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software liabilities or obligations under Environmental Laws which do not relate to operations at the Leased Property (including all enterprise information systemseach as defined in Section 4.16), engineering and design equipment, computer networking equipment and other tangible personal property, together with any rights, claims and interests arising out of maintenance 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;
(v) all Contracts, including all rights any liabilities or obligations not related to receive payment for products sold the ownership of the German Truck-Mounted Assets or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect operation of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Date)German Truck-Mounted Business;
(vi) all creditssubject to the terms, advancesconditions and limitations of this Agreement, prepaid expensesany liabilities, deposits costs and retentions held expenses related to the transactions contemplated by third parties, including those held by third parties under Contractsthis Agreement;
(vii) all Permitsany liabilities or obligations with respect to the litigation described in Section 4.15 of the Disclosure Statement and any other litigation not described in Section 4.15 of the Disclosure Statement which is pending as of the Closing Time;
(viii) all lock boxesany liabilities based upon products liability related to products sold prior to the 1999 Closing or sent out into the stream of commerce prior to the 1999 Closing;
(ix) all liabilities and obligations under the benefits of coverage provided by insurance policies of the Company Employment Contracts (as defined in Section 6.10) with respect to the Business) in respect of matters occurring on or periods prior to the Closing Date as set forth in Section 9.5Time, except to the extent reflected on the Closing Balance Sheet;
(x) all operating, design, manufacturing, test any liabilities or obligations that (A) are based upon products liability for products sold after the 1999 Closing and other data prior to the Closing Time and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale B) are based on accidents which occurred after the 1999 Closing and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and informationprior to the Closing Time;
(xi) all liabilities and obligations under the corporate name "StarTrak Systems" and any other names used in connection with the Business1999 Purchase Agreement which do not constitute Assumed German Liabilities;
(xii) all telephone numbers used in connection any liabilities related to the noncompliance by the parties hereto with the Business;any applicable bulk transfer law; and
(xiii) all rights liabilities and obligations related to the lease agreement for the real property located at Alte ▇▇▇▇▇▇▇ ▇▇ in and to products sold or leased by the Business and products of the Business currently in development;Dortmund; and
(xiv) all causes of action, choses in action, lawsuits, judgments, claims, rights under express or implied warranties, guarantees, indemnities and similar rights in favor of to the Company, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands of any nature available to or being pursued by the Company;
(xv) all goodwill and going concern value of the Business; and
(xvi) all other assets, properties and rights (other than Retained Assets), including those reflected as assets on the Final Closing Statement. The assets, properties and rights of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements to any of the items extent not already described in this Section 2.1(a) 1.1(e), those liabilities and obligations expressly excluded from the date definition of this Agreement through the Closing DateAssumed German Liabilities in subsections (i), and will exclude(ii), to the extent permitted by this Agreement(iii), all deletions(iv), sales or other disposals of any of the foregoing from the date of this Agreement through the Closing Date.
(b) Anything contained herein to the contrary notwithstandingv), the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or rightvi), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or rightviii) with the Company, to obtain prior to the Closing all Consents of Section 1.1(d). The excluded liabilities and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in this Section 3.1(a1.1(e) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk none of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed assumed by Buyer) are collectively referred to be a Retained Asset/Retained Liabilityhereinafter as the "Excluded German Liabilities."
Appears in 1 contract
Sale and Purchase of Assets. (a) Subject to Upon the terms and subject to the conditions set forth herein of this Agreement, on the Closing Date (as hereinafter defined), Seller is selling, transferring and in reliance upon the representations and warranties contained herein, at the Closing, for the consideration specified in Section 4.1, the Company will sell, assign, convey, transfer and deliver conveying to Buyer, Buyer and Buyer will purchase is purchasing and acquire acquiring from the CompanySeller, all of the CompanySeller's right, title to and interest in all of the properties, rights and to (i) the Business Intellectual Propertyassets of Seller, free wherever situated, of every kind, nature and clear of any Liensdescription, other than Permitted Liens, (ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iii) all other assets, properties and rights (whether tangible or intangible, realconstituting part of the Business, personal or mixedwhether arising by contract, fixed, contingent law or otherwise, and wherever located) of the Company or otherwise Related to the Business (except for Retained Assetsthe Excluded Assets (as hereinafter defined), in each case free and clear of any Liens, other than Permitted Liens, all as the same shall exist on the Closing DateDate (the “Assets”), including, without limitation, the following:
(a) all furniture, fixtures, equipment and other fixed assets and leasehold improvements used in connection with or related to the Business;
(b) all lists, mailing lists, documents, information and records (whether in printed form or computer or other electronic media) related, in each case, to past, present and prospective customers of the Business;
(c) copies of all existing files, accounting records, correspondence, internal reports and contractual documents related to the Business, including the following databases and records, whether in print, digital or other electronic format;
(d) all copy, films, digital media, mechanicals, graphics, artwork, camera-ready plates, plate-making film, photographs and other reproduction materials related to the extent Related to Business, whether in the Business (unless otherwise provided):possession of Seller or third parties;
(ie) all real promotional and marketing materials, whether in print, digital or other electronic format;
(f) all intellectual property Leases used in the Business, including, without limitation, all trade names, (including, without limitation, the name “Fitness 24/7”), trademarks and service marks, domain names and URLs set forth on Schedule 2.1(a)(i1.01(f);
(iig) all accountseach contract, loans and notes receivable agreement, commitment or arrangement related to the Business set forth on Schedule 1.01(g) (whether current or not current), performance and surety bonds and letters of credit or other similar instruments in favor of the Company;
(iii) all inventories, including finished products, work-in-process, materials, parts, components, production stock, accessories, supplies and consigned inventory (including all such inventories that are held by third parties“Assigned Contracts”);
(ivh) all machinerysoftware, equipmentsoftware systems, toolingdatabases and database systems, vehicleswhether owned, furniture and fixturesleased or licensed, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software (including all enterprise information systems), engineering and design equipment, computer networking equipment and other tangible personal property, together with any rights, claims and interests arising out of maintenance 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;
(v) all Contracts, including all rights to receive payment for products sold or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Date);
(vi) all credits, advances, prepaid expenses, deposits and retentions held by third parties, including those held by third parties under Contracts;
(vii) all Permits;
(viii) all lock boxes;
(ix) the benefits of coverage provided by insurance policies of the Company (with respect to the Business) in respect of matters occurring on or prior to the Closing Date as set forth in Section 9.5;
(x) all operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and information;
(xi) the corporate name "StarTrak Systems" and any other names that are used in connection with the Business;
(xiii) all 1-800 or other telephone numbers used in connection with the Business;; and
(xiiij) all rights in and to products sold or leased by the Business and products of the Business currently in development;
(xiv) all causes of action, choses in action, lawsuits, judgments, claims, rights under express or implied warranties, guarantees, indemnities and similar rights in favor of the Company, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands of any nature available to or being pursued by the Company;
(xv) all goodwill and going concern value of related to the Business; and
(xvi) all other assets, properties and rights (other than Retained Assets), including those reflected as assets on the Final Closing Statement. The assets, properties and rights of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals of any of the foregoing from the date of this Agreement through the Closing Date.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract
Sources: Asset Sale and Purchase Agreement (Golden Global Corp.)
Sale and Purchase of Assets. (a) Subject to the terms and conditions set forth herein and in reliance upon the representations and warranties contained herein, at the Closing, for the consideration specified in Section 4.1of this Agreement, the Company Seller will sell, assign, convey, transfer and deliver convey to the Buyer, and the Buyer will purchase purchase, acquire and acquire accept from the Company, all of the Company's right, title and interest in and to (i) the Business Intellectual PropertySeller, free and clear of any Liens, all Encumbrances other than Permitted LiensEncumbrances, all of the Seller’s assets of every kind and description (ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iiithe Excluded Assets) all other assets, properties and rights (whether tangible or intangible, real, personal or mixed, fixed, contingent or otherwise, and wherever located) of the Company or otherwise Related to the Business (except for Retained Assets), in each case free and clear of any Liens, other than Permitted Liens, as the same shall exist on the Closing DateDate (the “Purchased Assets”), including:
(a) All machinery, equipment, parts, tools, computer hardware, supplies, samples, prototypes and other items of tangible personal property (other than Inventory) (the “Tangible Personal Property”);
(b) All inventories wherever located, including raw materials, goods consigned to vendors or subcontractors, works in process, finished goods, spare parts, goods in transit, products under research and development, demonstration equipment, samples, prototypes and inventory on consignment (the following “Inventory”);
(c) All rights and interests in and to any Contracts;
(d) All Intellectual Property;
(e) All business and financial records, books, ledgers, files, correspondence, documents, lists, studies and reports (other than those related to employees, personnel and payroll), including customer lists, supplier lists and equipment repair, maintenance, service, quality control and insurance records, whether written, electronically stored or otherwise recorded (the “Books and Records”);
(f) All goodwill and all sales, advertising, promotional and marketing information and materials;
(g) All e-mail addresses assigned to the extent Related to the Business Seller;
(unless otherwise provided):h) All Permits;
(i) all real property Leases set forth on Schedule 2.1(a)(i);
(ii) all accounts, loans and notes receivable (whether current or not current), performance and surety bonds and letters of credit or other similar instruments in favor All rights of the Company;
(iii) all inventories, including finished products, work-in-process, materials, parts, components, production stock, accessories, supplies and consigned inventory (including all such inventories that are held by third parties);
(iv) all machinery, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software (including all enterprise information systems), engineering and design equipment, computer networking equipment and other tangible personal property, together with any rights, claims and interests arising out of maintenance 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;
(v) all Contracts, including all rights Seller to receive payment for products sold or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Date);
(vi) all credits, advances, prepaid expenses, deposits and retentions held by third parties, including those held by third parties under Contracts;
(vii) all Permits;
(viii) all lock boxes;
(ix) the benefits of coverage provided by insurance policies of the Company (with respect to the Business) in respect of matters occurring on or prior to the Closing Date as set forth in Section 9.5;
(x) all operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and information;
(xi) the corporate name "StarTrak Systems" and any other names used in connection with the Business;
(xii) all telephone numbers used in connection with the Business;
(xiii) all rights in and to products sold or leased by the Business and products of the Business currently in development;
(xiv) all causes of action, choses in action, lawsuits, judgments, claims, rights under express or implied warranties, guarantees, indemnities and similar rights in favor of the Company, rights of recovery, rights of set-off, rights of subrogation and all other rights claims and demands of any nature available and all counterclaims, rights of setoff, rights of indemnification and affirmative defenses to or being pursued any claims that may be brought against the Buyer by the Companythird parties;
(xvj) All benefits under all goodwill insurance policies to which the Seller is a party, a named insured or otherwise the beneficiary of coverage (the “Insurance Policies”);
(k) All rights to refunds from suppliers and going concern value of the Businessall prepaid expenses and deposits; and
(xvil) all All other assets, properties and assets to the extent the Seller has any rights (other than Retained Assets)thereto or interests therein, including those reflected as whether a present or future interest, an inchoate right or otherwise and whether such properties or assets on the Final Closing Statement. The assets, properties are tangible or intangible and rights whether or not of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements to a type falling within any of the items categories of assets or properties described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals of any of the foregoing from the date of this Agreement through the Closing Dateabove.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract
Sale and Purchase of Assets. (a) Subject to the terms and conditions set forth herein and in reliance upon the representations and warranties contained hereinof this Agreement, at the Closing, for the consideration specified in Section 4.1, the Company will Tactyl shall sell, assigntransfer, convey, transfer assign and deliver to Buyerthe Acquiring Party, and Buyer will purchase the Acquiring Party shall purchase, acquire and acquire accept from the CompanyTactyl, all of the Company's right, title and interest of Tactyl in and to (i) the Business Intellectual Property, free and clear of any Liens, Assets other than Permitted Liensthe Excluded Assets (such assets being sold and purchased, the "Purchased Assets"), including, without limitation, the following (ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iii) all other assets, properties and rights (whether tangible except as such may refer or intangible, real, personal or mixed, fixed, contingent or otherwise, and wherever located) of the Company or otherwise Related relate to the Business (except for Retained Excluded Assets), in each case free and clear of any Liens, other than Permitted Liens, as the same shall exist on the Closing Date, including the following to the extent Related to the Business (unless otherwise provided):): 7
(ia) All interests in land, structures, improvements and fixtures and all real property Leases set forth on Schedule 2.1(a)(i)water lines, rights of way, uses, licenses, easements, hereditaments, tenements and appurtenances belonging or appertaining thereto;
(iib) all accounts, loans and notes receivable (whether current or not current), performance and surety bonds and letters of credit or other similar instruments in favor of the Company;
(iii) all inventories, including finished products, work-in-process, materials, parts, components, production stock, accessories, supplies and consigned inventory (including all such inventories that are held by third parties);
(iv) all All machinery, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, vehicles, furniture, furnishings, leasehold improvements, goods, and other tangible personal property;
(c) All prepaid items, unbilled costs and fees, and accounts, notes and other receivables;
(d) All inventories and office and other supplies;
(e) All rights under any written or oral contract, agreement, lease, plan, instrument, registration, license, certificate of occupancy, other permit or approval of any nature, or other document, commitment, arrangement, undertaking, practice or authorization;
(f) All rights under any patent, trademark, service mark, ▇▇ade name or copyright, whether registered or unregistered, and any applications therefor, and the goodwill related thereto, including, without limitation, all rights to the name "Tactyl Technologies";
(g) All designs, blueprints, technologies, methods, formulations, data bases, trade secrets, know-how, inventions and other intellectual property used in the Tactyl Business or under development;
(h) All computer hardware and software (including all enterprise information systems), engineering documentation and design equipment, computer networking equipment related object and other tangible personal property, together with any rights, claims and interests arising out of maintenance 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;
(v) all Contracts, including all rights to receive payment for products sold or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Datesource codes);
(vii) all credits, advances, prepaid expenses, deposits and retentions held by third partiesAll rights or choses in action arising out of occurrences before or after the Closing, including those held by third parties under Contracts;
(vii) without limitation all Permits;
(viii) all lock boxes;
(ix) the benefits of coverage provided by insurance policies of the Company (with respect to the Business) in respect of matters occurring on or prior to the Closing Date as set forth in Section 9.5;
(x) all operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and information;
(xi) the corporate name "StarTrak Systems" and any other names used in connection with the Business;
(xii) all telephone numbers used in connection with the Business;
(xiii) all rights in and to products sold or leased by the Business and products of the Business currently in development;
(xiv) all causes of action, choses in action, lawsuits, judgments, claims, rights under express or implied warranties, guarantees, indemnities and similar rights in favor of warranties relating to the Company, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands of any nature available to or being pursued by the CompanyAssets;
(xvj) all goodwill All information, files, records, data, plans, contracts and going concern value of recorded knowledge related to the Businessforegoing;
(k) All customer and supplier lists; and
(xvil) all Any other assets, properties and rights (other than Retained Assets), including those reflected as assets on the Final Closing Statement. The assets, properties and rights of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively Asset not referred to as the "Assets". The term "Assets" will include all additions and replacements to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals of any of the foregoing from the date of this Agreement through the Closing Date.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 clauses (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy through (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"k), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract
Sale and Purchase of Assets. (a) Subject to all of the terms and conditions set forth herein of this Agreement and in reliance upon the representations and warranties contained herein, at the ClosingClosing provided for in SECTION 1.3, for the consideration specified in Section 4.1Seller shall sell, the Company will selltransfer, assign, convey, transfer and deliver to Buyer, and Buyer will purchase and acquire from the Company, all of the Company's right, title and interest in and to (i) the Business Intellectual PropertyPurchaser, free and clear of any Liens, all Liens (other than Permitted Liens, (ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens), and (iii) Purchaser shall purchase from Seller, all other assetsright, title, and interest of Seller in and to all of the assets and properties of every nature, kind, and rights (whether description, tangible or and intangible, whether real, personal personal, or mixed, fixed, whether contingent or otherwise, and wherever located) whether now existing or hereinafter acquired, whether or not reflected on Seller's books, used or held for use in the operation of the Company or otherwise Related to Business, excluding in all cases only the Business (except for Retained Excluded Assets), in each case free and clear of any Liens, other than Permitted Liens, as the same shall may exist on as of the Closing DateDate (collectively, including the following to the extent Related to the Business (unless otherwise provided):"Assets"), including, without limitation, all right, title, and interest of Seller in, to, and under:
(ia) all The Edgefield Facility, together with the real property Leases set forth described on Schedule 2.1(a)(iSCHEDULE 1.1(a) and the buildings, fixtures and improvements located thereon (the "Real Property");
(iib) All machinery and equipment, tools, business machines, computers, terminals, computer equipment, telephones, telephone systems, furniture, office equipment, furnishings, vehicles, trucks, forklifts, rolling stock, trailers, and storage units located at the Edgefield Facility and any and all accountsassignable warranties of third parties with respect thereto, loans and notes receivable (whether current or not current)including, performance and surety bonds and letters of credit or other similar instruments in favor of the Companywithout limitation, all personal property listed on SCHEDULE 2.1.4;
(iiic) all inventories, including finished products, All raw materials and work-in-process, materials, parts, components, production stock, accessories, supplies and consigned inventory process located at the Edgefield Facility (including all such inventories that are held by third partiesthe "Inventory");
(ivd) To the extent transfer is permitted by Applicable Law, all machinerylicenses, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software (including all enterprise information systems), engineering and design equipment, computer networking equipment and other tangible personal property, together with any rights, claims and interests arising out of maintenance 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;
(v) all Contracts, including all rights to receive payment for products sold or services renderedpermits, and orders issued by any Governmental Authority with respect to receive goods and servicesthe operation of the Business, pursuant to Contracts and to assert claims and to take other actions in respect of breachesincluding, defaults and other violations thereunder (whether or not arising or asserted beforewithout limitation, those listed on or after the Closing DateSCHEDULE 2.1.7(b);
(vie) all All credits, advancesprepaid rentals, and other prepaid expenses, deposits deferred charges, advance payments, security deposits, and retentions held by third partiesprepaid items relating to the Assets (excluding, including those held by third parties under Contractshowever, prepaid insurance relating to the Business);
(viif) all PermitsProceeds from any insurance or indemnity claims pending but unresolved as of the Closing Date with respect to any of the Assets;
(viiig) all lock boxes;
(ix) the benefits of coverage provided by insurance policies of the Company (with respect to the Business) in respect of matters occurring on or prior to the Closing Date as set forth in Section 9.5;
(x) all operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and information;
(xi) the corporate name "StarTrak Systems" and any other names used in connection with the Business;
(xii) all telephone numbers used in connection with the Business;
(xiii) all rights in and to products sold or leased by the Business and products of the Business currently in development;
(xiv) all causes of action, All choses in action, lawsuits, judgments, claims, rights under express or implied warranties, guarantees, indemnities and similar rights in favor of the Company, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands of any nature available against third parties, whether by way of counterclaim or otherwise, with respect to the ownership, use, function, or being pursued by value of any of the CompanyAssets, regardless of when such choses in action, claims, and demands arise;
(xvh) all goodwill All books, records, files, invoices, data bases, computer programs, manuals and going concern value other materials (in any form or medium) relating to the operation of the BusinessEdgefield Facility, including, without limitation, personnel records of Hired Employees (except to the extent transfer or disclosure thereof is restricted by Applicable Law); and
(xvii) all other assets, properties and rights (other than Retained Assets), including those reflected as assets on All goodwill attributable to the Final Closing Statement. The assets, properties and rights operation of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals of any of the foregoing from the date of this Agreement through the Closing DateBusiness.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract
Sale and Purchase of Assets. (a) Subject to all of the terms and conditions set forth herein of this Agreement and in reliance upon the representations and warranties contained herein, at on the Closing, for the consideration specified in Section 4.1Closing Date, the Company will shall sell, transfer, assign, convey, transfer and deliver to BuyerDelta, and Buyer will purchase Delta shall purchase, free and acquire from clear of all Liens (other than Permitted Liens), all right, title, and interest of the Company in and to all of the assets and properties of every nature, kind, and description, tangible and intangible, whether real, personal, or mixed, whether contingent or otherwise, whether now existing or hereinafter acquired, whether or not reflected on the Company's books, of or relating to the Business, excluding only the Excluded Assets, as the same may exist on the Closing Date (collectively, the "Assets"), including, without limitation, all right, title, and interest of the Company in, to, and under:
(a) By assignment of the Assumed Leases, all of the Company's rightleasehold interest under the Assumed Leases to buildings, title fixtures, and interest in improvements located on the real property subject to such Assumed Leases, and to any and all assignable warranties of third parties with respect thereto;
(ib) All tangible assets of the Business Intellectual PropertyCompany, free including all fixed assets, equipment, tools, computers, terminals, computer equipment, telephones, telephone systems, furniture, office equipment, and clear of any Liensfurnishings, including, without limitation, the personal property listed on Schedule 1.1(b), other than Permitted Liens, (ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iii) all other assets, properties and rights (whether such tangible or intangible, real, personal or mixed, fixed, contingent or otherwise, and wherever located) of the Company or otherwise Related to the Business (except for Retained assets that comprise Excluded Assets), in each case free and clear of any Liens, other than Permitted Liens, as the same shall exist on the Closing Date, including the following to the extent Related to the Business (unless otherwise provided):
(i) all real property Leases set forth on Schedule 2.1(a)(i);
(iic) all accountsAll inventories of raw materials, loans and notes receivable (whether current or not current), performance and surety bonds and letters of credit or other similar instruments in favor of the Company;
(iii) all inventories, including finished productssupplies, work-in-process, materialsfinished products, goods, spare parts, componentsreplacement and component parts, production stockoffice supplies, accessoriespackaging material, supplies and consigned inventory similar items other than to the extent any such items comprise or relate exclusively to Excluded Assets or Excluded Liabilities;
(including d) All designs, artwork, and similar items;
(e) All accounts receivable;
(f) All Intellectual Property, all such inventories that are held by third partiesgoodwill associated therewith, including, without limitation, the Company's custom-developed, proprietary software and associated source code, and all telephone numbers, telecopy numbers, websites, and e-mail addresses;
(g) all equity and other interests in Textiles La Paz, LLC (the "El Salvador Subsidiary") and Campeche Sportswear, S. de C.V. (the "Mexican Subsidiary");
(ivh) all machinery, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer All hardware and software (including owned, used, or held for use in the conduct of the Business and any and all enterprise information systems), engineering files and design equipment, computer networking equipment and data contained on such software other tangible personal property, together with any rights, claims and interests arising out of maintenance or service contracts relating thereto or than to the breach of any express or implied warranty by the manufacturers or sellers of extent any such assets files and data relate exclusively to the Excluded Assets or any component part thereofExcluded Liabilities;
(vi) All customer lists, customer data, e-mail directories, and other customer information relating to the Business;
(j) Except as provided in Section 1.2(a), all ContractsContracts relating to the Business, including all rights including, without limitation, any right to receive payment for products sold pursuant to such Contracts other than Contracts that relate exclusively to the Excluded Assets or services renderedExcluded Liabilities;
(k) To the extent transfer is permitted by Applicable Law, all licenses, permits, and orders issued by any Governmental Authority with respect to receive goods and servicesthe conduct of the Business, pursuant to Contracts and to assert claims and to take other actions in respect of breachesincluding, defaults and other violations thereunder (whether or not arising or asserted beforewithout limitation, those listed on or after the Closing DateSchedule 2.1.14(b);
(vil) all All credits, advancesprepaid rentals, and other prepaid expenses, deposits deferred charges, advance payments, security deposits, and prepaid items other than to the extent any such items relate solely to any of the Excluded Assets or Excluded Liabilities;
(m) All contracts of insurance and all interests in any insurance, insurance claims, refunds, escrows, reserves, or rights to indemnity with respect to any of the Assets or any of the Assumed Liabilities, provided that Delta shall pay any deductibles and self insured retentions held by with respect thereto;
(n) All real and personal property tax refunds relating to the Assets to the extent reflected in the Net Working Capital;
(o) All choses in action, claims, and demands of any nature against third parties, including those held whether by third parties under Contracts;
(vii) all Permits;
(viii) all lock boxes;
(ix) the benefits way of coverage provided by insurance policies of the Company (counterclaim or otherwise, with respect to the Business) ownership, use, function, or value of any of the Assets or the Assumed Liabilities, regardless of when such choses in respect of matters occurring on or prior to the Closing Date as set forth in Section 9.5action, claims, and demands arise;
(xp) all operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all All books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returnsinvoices, copies of all financial data bases, computer programs, manuals, and accounting data and recordsother materials (in any form or medium), including, without limitation, sales and sales promotional material and data, advertising materials, credit informationpersonnel records, cost and pricing information, customer and supplier lists, business plans, reference catalogs, payroll and personnel records and procedures, blue-prints, research and development files, data and laboratory booksaccounting records, sales order files, litigation files and supplier lists, in each case other similar propertythan to the extent any of such items relate exclusively to Excluded Assets, rights and informationExcluded Liabilities or personnel who will continue to be employed with the Company following the Closing;
(xiq) The Company's rights pursuant to Section 10 (Noncompetition and Nonsolicitation) under the corporate name Employment Agreement dated as of July 18, 2005, between the Company and Julius D. Cline (the "StarTrak Systems" and any other names used in connection with the BusinessCline Employment Agreement");
(xiir) all telephone numbers used in connection with the Business;
(xiii) all rights in and to products sold or leased by the Business and products of the Business currently in development;
(xiv) all causes of action, choses in action, lawsuits, judgments, claims, rights under express or implied warranties, guarantees, indemnities and similar rights in favor of the Company, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands of any nature available to or being pursued by the Company;
(xv) all goodwill and going concern value of All ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇quivale▇▇▇ ▇f the Business; and
(xvis) all other assets, properties and rights (other than Retained Assets), including those reflected as assets on All goodwill attributable to the Final Closing Statement. The assets, properties and rights operation of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Date, and will exclude, to the extent permitted by this Agreement, all deletions, sales or other disposals of any of the foregoing from the date of this Agreement through the Closing DateBusiness.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract
Sale and Purchase of Assets. (a) Subject to 1.1 Sale and Purchase Upon the terms and subject to the ----------------- conditions set forth herein and contained in reliance upon the representations and warranties contained hereinthis Agreement, at the Closing, for the consideration specified Closing (as defined in Section 4.1section 4), the Company will Seller shall sell, assign, convey, transfer and deliver to the Buyer, and the Buyer will shall purchase and acquire accept from the CompanySeller, all of the Company's right, title and interest in and to (i) the Business Intellectual Property, free and clear of any Liens, other than Permitted Liens, (ii) the Transferred Bank Accounts, free and clear of any Liens, other than Permitted Liens, and (iii) all other assets, properties assets and rights (whether of every nature, kind and description, tangible or and intangible, real, personal or mixed, fixed, contingent or otherwise, and wherever located) of , that are owned, used or held for use by the Company Seller in or otherwise Related to for the Business (except for Retained Assets), in each case free and clear of any Liens, other than Permitted LiensBusiness, as the same shall exist on the Closing DateDate (collectively, the "Acquired Assets"), free and clear of any and all Liens (as defined in section 5.6(a)), including, without limitation, the following:
(a) cash, cash equivalents and securities on hand or on deposit;
(b) accounts receivable, notes receivable, drafts or other similar instruments;
(c) inventory, including but not limited to finished goods, work in process, raw materials and supplies;
(d) prepaid expenses and deposits;
(e) machinery, equipment, tools and dies, hand tools, vehicles, computers and other data processing hardware (and all software related thereto or used therewith) and other tangible personal property of similar nature, including but not limited to all items set forth on Seller's fixed asset ledger attached to this Agreement on Schedule 5.11(b) (collectively, the following "Machinery and Equipment");
(f) office furniture, office equipment, fixtures and other tangible personal property of similar nature (collectively, the "Furniture and Fixtures");
(g) interests in any patent, copyright, trademark, trade name, brand name, service ▇▇▇▇, logo, symbol, trade dress, design or representation or expression of any thereof, or registration or application for registration thereof, or any other invention, trade secret, technical information, know-how, proprietary right or intellectual property, technologies, methods, designs, drawings, software (including documentation and source code listings), processes and other proprietary properties or information (collectively, the "Intellectual Property");
(h) to the extent Related not included above, and subject to section 1.3, all contracts, agreements, options, commitments, understandings, licenses, leases and instruments (collectively, the "Contracts") relating to the Business Business, including, without limitation, customer and supplier Contracts, sales representative and distributor Contracts and commission Contracts with respect thereto, and each of the Material Contracts as listed on Schedule 5.12 (unless otherwise provided):collectively, the "Assigned Contracts");
(i) all real property Leases set forth on Schedule 2.1(a)(i);
(ii) all accounts, loans and notes receivable (whether current or not current), performance and surety bonds and letters of credit or other similar instruments in favor of the Company;
(iii) all inventories, including finished products, work-in-process, materials, parts, components, production stock, accessories, supplies and consigned inventory (including all such inventories that are held by third parties);
(iv) all machinery, equipment, tooling, vehicles, furniture and fixtures, leasehold improvements, plant and office equipment, test equipment, laboratory equipment and supplies, repair parts, repair stock, tools, computer hardware and software (including all enterprise information systems), engineering and design equipment, computer networking equipment and other tangible personal property, together with any rights, claims and interests arising out of maintenance 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;
(v) all Contracts, including all rights to receive payment for products sold or services rendered, and to receive goods and services, pursuant to Contracts and to assert claims and to take other actions in respect of breaches, defaults and other violations thereunder (whether or not arising or asserted before, on or after the Closing Date);
(vi) all credits, advances, prepaid expenses, deposits and retentions held by third parties, including those held by third parties under Contracts;
(vii) all Permits;
(viii) all lock boxes;
(ix) the benefits of coverage provided by insurance policies of the Company (with respect to the Business) in respect of matters occurring on or prior to the Closing Date as set forth in Section 9.5;
(x) all operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including all books, records, notes, shipping records, sale and purchase correspondence and files, copies of Tax Returns, copies of all financial and accounting data and records, sales and sales promotional material and data, advertising materials, credit information, cost and pricing information, customer and supplier lists, business plansmailing lists, reference catalogs, payroll brochures and personnel records and procedures, blue-prints, research and development files, data and laboratory books, sales order files, litigation files and other similar property, rights and information;
(xi) the corporate name "StarTrak Systems" and any other names used in connection with handbooks relating to the Business;
(xiij) other books, records, files, contracts, plans, notebooks, production and sales data and other data of the Seller relating to its Business, whether or not in tangible form or in the form of intangible computer storage media such as optical disks, magnetic disks, tapes and all telephone numbers used in connection with the Businesssimilar storage media;
(xiiik) the name Phazar Aerocorp and the goodwill associated therewith, together with all trademarks, service marks and trade names of the Seller;
(l) rights in and related to products sold or leased by the Business and products any portion of the Business currently in development;
(xiv) all causes of actionor the Acquired Assets, choses in actionincluding third party warranties and guarantees and other similar contractual rights, lawsuits, judgments, claims, rights under express as to third parties held by or implied warranties, guarantees, indemnities and similar rights in favor of the CompanySeller and arising out of, rights of recovery, rights of set-off, rights of subrogation and all other rights and demands of any nature available resulting from or relating to the Business or being pursued by the Company;
(xv) all goodwill and going concern value of the BusinessAcquired Assets; and
(xvim) all other assets, properties rights to insurance and rights (other than Retained Assets), including those reflected as assets on the Final Closing Statement. The assets, properties and rights of the Company to be sold, assigned, conveyed, transferred and delivered to Buyer pursuant to this Agreement are herein collectively referred to as the "Assets". The term "Assets" will include all additions and replacements condemnation proceeds relating to any of the items described in this Section 2.1(a) from the date of this Agreement through the Closing Datedamage, and will excludedestruction, to the extent permitted by this Agreement, all deletions, sales taking or other disposals similar impairment of any of the foregoing from the date of this Agreement through the Closing Date.
(b) Anything contained herein to the contrary notwithstanding, the Assets to be sold, assigned, conveyed, transferred and delivered to Buyer hereunder will exclude, and the Company will retain, the Retained Acquired Assets.
(c) Anything contained herein to the contrary notwithstanding, this Agreement will not constitute an assignment, an attempted assignment or an agreement to assign any Contract or Permit if an assignment or attempted assignment of the same without the Consent of any other party or parties thereto would constitute a breach thereof or in any significant way impair the rights of Buyer thereunder. The Company will use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right), and Buyer will reasonably cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) with the Company, to obtain prior to the Closing all Consents and to resolve all impracticalities of assignments or transfers necessary to sell, assign, convey, transfer and deliver to Buyer the Assets. If any such Consent is not obtained or if an attempted assignment would be ineffective or would impair the Company's or Buyer's rights under any such Contract or Permit so that Buyer would not receive all such rights, then (1) the Company will (x) cause the full benefits of any such Contract or Permit to be provided to Buyer to the extent practicable, and (y) pay promptly or cause to be paid promptly to Buyer when received all monies and other properties received by the Company with respect to any thereof; and (2) in consideration of the Company providing or causing to be provided to Buyer the full benefits thereof, Buyer will perform and discharge on behalf of the Company all of the Company's liabilities, obligations or commitments thereunder that are Assumed Liabilities described in Section 3.1(a) or 3.1(c) in accordance with the provisions thereof. In addition, the Company shall take such other actions (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such Contract or Permit had been transferred as contemplated hereby and so that all the benefits relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. Notwithstanding the foregoing, if any such Consent is not obtained prior to the Closing, the Company shall continue to use its commercially reasonable efforts (not to include any requirement to pay any consideration or offer or grant any financial accommodation or other benefit or release any claim or right) to obtain all such Consents (and, if and when such Consents are obtained, the transfer of the applicable Contract or Permit will be effected in accordance with the terms of this Agreement).
(d) In the event that any written or oral Contract not set forth on Schedule 6.10 (a) is discovered after the Effective Time, Parent or the Company shall promptly notify Buyer of such Contract and provide Buyer with a copy (or true and correct summary of the material terms if the Contract is oral) thereof and Buyer shall within thirty (30) days of such notice either expressly assume such Contract (an "Additional Contract"), in which case, the Additional Contract will be treated as if set forth as a Contract on Schedule 6.10(a) on the date hereof, or reject such Contract, in which case, such Contract shall not constitute an Asset and shall be deemed to be a Retained Asset/Retained Liability.
Appears in 1 contract