Sale and Purchase of Assets. At the Closing, each Asset Seller shall sell, assign, transfer and deliver to Purchaser, and Purchaser shall purchase from such Asset Seller, free and clear of all Liens (other than Permitted Liens), on the terms and subject to the conditions and exclusions set forth in this Agreement, all (a) Internet domain names of such Asset Seller primarily used or held for use in the Business, (b) the Franchise Agreements, but only to which such Asset Seller is a party and listed on Section 2.14(a) of the Company Disclosure Schedule, (c) the accounts receivable of such Asset Seller arising from such Asset Seller’s Franchise Agreements, (d) all claims, causes of action, rights of recovery, rights of set-off, and warranties of such Asset Seller (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise) to the extent relating to the Business or any Purchased Assets, and all defenses and rights of offset or counterclaim to the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and (e) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectively, the “Purchased Assets”), including those items set forth on Section 1.2 of the Company Disclosure Schedule. Purchaser shall not purchase, and the Purchased Assets shall not include, any assets, rights or properties of the Asset Sellers other than those set forth in subsections (a) – (e) above (all such assets, rights and properties not being purchased, the “Excluded Assets”).
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Red Lion Hotels CORP)
Sale and Purchase of Assets. At the Closing, each Asset Seller shall sell, assign, transfer and deliver to Purchaser, and Purchaser shall purchase from such Asset Seller, free and clear of all Liens (other than Permitted Liens), on a) Upon the terms and subject to the conditions and exclusions set forth in of this Agreement, all effective as of the Closing (a) Internet domain names or as of such Asset Seller later date as may be expressly provided in this Section 2.01(a), Section 2.08 or in the Separation Agreement), BSC shall, and shall cause the Sellers to, sell, assign, transfer, convey and deliver to the Purchaser or its Purchaser Affiliates, free and clear of all Encumbrances (other than Permitted Encumbrances) and the Purchaser shall, and shall cause its Purchaser Affiliates to, purchase from BSC and the Sellers, all the right, title and interest of BSC and the Sellers in and to all of the assets, properties, rights and claims of BSC and the Sellers primarily used in or held for use in primarily related to the Business, (bother than the Excluded Assets or as expressly provided in this Section 2.01(a) the Franchise Agreements, but only to which such Asset Seller is a party and listed on Section 2.14(a) of the Company Disclosure Schedule, (c) the accounts receivable of such Asset Seller arising from such Asset Seller’s Franchise Agreements, (d) all claims, causes of action, rights of recovery, rights of set-off, and warranties of such Asset Seller (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise) to the extent relating to the Business or any Purchased Assets, and all defenses and rights of offset or counterclaim to the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and Ancillary Agreements (e) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectively, the “Purchased Assets”), including those items the following:
(i) the Business as a going concern;
(ii) the goodwill of BSC and the Sellers primarily related to the Business;
(iii) (A) all rights in respect of the Leased Real Property and (B) all rights granted to the Purchaser with respect to the Cork Purchaser Leased Facility pursuant to the Cork Lease Agreement;
(iv) all tangible personal property used or held for use primarily in the conduct of the Business, including the tangible personal property identified on Section 2.01(a)(iv) of the Disclosure Schedule and all machinery, equipment, furnishings, computer hardware, tangible copies of software or other code, tools, furniture, fixtures and vehicles used primarily in the operation of the Business, and all assets held for personal use such as cell phones, personal computers, external storage devices and Blackberrys used by Transferred Employees (collectively, the “Tangible Personal Property”);
(v) all finished goods inventory (including consigned inventory) and other merchandise used or held for use primarily in the conduct of the Business and maintained, held or stored by or for BSC or one or more of the Sellers, as of the Closing Date, and any prepaid deposits for any of the same;
(vi) all books of account, general, financial, personnel records and non-income Tax Returns (and supporting workpapers and other records), invoices, shipping records, supplier lists, correspondence and other documents, records and files of BSC and the Sellers, including filings with the FDA and other Governmental Authorities and quality control histories to the extent pertaining to the Products, in each case primarily related to the Business or the Purchased Assets, (the “Transferred Records”); provided that BSC may redact any information from such Transferred Records not pertaining to the Products or primarily related to the Business prior to the delivery of such Transferred Records to the Purchaser (provided that such redaction shall not impair any information pertaining to the Products or primarily related to the Business contained in the Transferred Records) and may retain a copy of any Transferred Records;
(vii) only the Intellectual Property identified in Section 2.01(a)(vii) of the Disclosure Schedule (the “Transferred Intellectual Property”);
(viii) subject to Section 5.05, only the rights of BSC or the Sellers under the licenses of, and covenants not to assert with respect to, Intellectual Property identified in Section 2.01(a)(viii) of the Disclosure Schedule (the “Transferred IP Agreements”);
(ix) all sales, marketing and promotional literature and manuals, customer and supplier lists, distribution lists, pre-clinical, clinical and marketing studies and other sales-related materials of BSC and the Sellers, in each case primarily related to the Products or the Business (the “Transferred Sales Materials”); provided that BSC may redact any information from such Transferred Sales Materials not primarily related to the Products or the Business prior to the delivery of such Transferred Sales Materials to the Purchaser (provided that such redaction shall not impair any information primarily related to the Products or the Business contained in the Transferred Sales Materials) and may retain a copy of any Transferred Sales Materials;
(x) subject to Section 5.05, all rights of BSC or the Sellers under all Contracts exclusively related to the Business, other than the Transferred IP Agreements (which are addressed in Section 2.01(a)(viii)) (and including all real property leases contemplated by Section 2.01(a)(iii)(A) but excluding any other real property leases) (the “Transferred Contracts”), including the Contracts set forth on Section 1.2 2.01(a)(x) of the Company Disclosure Schedule. Purchaser shall not purchase;
(xi) all prepayments, security deposits, refunds and prepaid expenses to the extent primarily related to the Business;
(xii) all transferable licenses, Permits, Registrations, authorizations, orders and approvals from any Governmental Authority of BSC or the Sellers relating to any Transferred Site or primarily related to the Business, including those identified in Section 2.01(a)(xii) of the Disclosure Schedule (the “Transferred Permits”); and
(xiii) all claims, defenses, causes of action, choses in action, rights of recovery and rights of setoff or reimbursement of any kind (and rights under and pursuant to all warranties, representations and guarantees made by suppliers of products, materials, or equipment, or components thereof) of BSC or any of the Sellers, primarily related to the Business or the Purchased Assets, including rights to recover past, present and future damages in connection therewith.
(b) Notwithstanding anything in Section 2.01(a) to the contrary, the Purchased Assets shall not includeinclude the right, any title and interest of BSC and the Sellers in, to and under the following assets, rights or properties of the Asset Sellers other than those set forth in subsections (a) – (e) above (all such assetsproperties, rights and properties not being purchased, claims (the “Excluded Assets”):
(i) the Purchase Price Bank Account;
(ii) all cash and cash equivalents, securities, and negotiable instruments of BSC or any of the Sellers on hand, in lock boxes, in financial institutions or elsewhere, including all cash residing in any collateral cash account securing any obligation or contingent obligation of BSC, the Sellers or any of their Affiliates;
(iii) all Accounts Receivable arising from the conduct of the Business prior to 11:59 p.m. EST on the day immediately prior to the Closing Date;
(iv) all claims, defenses, causes of action, choses in action, rights of recovery for reimbursement, contribution, refunds, indemnity or other similar payment recoverable by BSC or the Sellers from or against any third party to the extent relating to any Excluded Liabilities;
(v) all assets, properties, rights and claims in respect of the Contract Manufacturing Sites, other than all rights of the Purchaser under the Ancillary Agreements;
(vi) the company seal, minute books, charter documents, stock or equity record books and such other books and records as pertain to the organization, existence or capitalization of BSC, the Sellers or any of their Affiliates, as well as any other records or materials relating to BSC generally and not primarily associated with or primarily employed by BSC or any of the Sellers in the conduct of the Business;
(vii) any capital stock of the Sellers;
(viii) any Plan and any assets of any such Plan;
(ix) except as set forth in Section 5.06, any and all rights in and to the Retained Names and Marks;
(x) any asset, property, right or claim that is listed or described in Section 2.01(b)(x) of the Disclosure Schedule;
(xi) all rights of BSC and the Sellers under this Agreement and the Ancillary Agreements;
(xii) any rights to Tax refunds, credits or similar benefits to the extent relating to the Excluded Taxes (but only to the extent that such Excluded Taxes were paid by a Seller);
(xiii) non-income Tax Returns (and supporting work papers and other records) of BSC and any of its Affiliates, other than those relating primarily to the Purchased Assets or the Business, and income Tax Returns (and supporting work papers and other records) of BSC and any of its Affiliates including the Sellers;
(xiv) all current and prior insurance policies of BSC and its Affiliates and, except as set forth in Section 5.21, all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries; and
(xv) books of account, invoices, shipping records and other records to the extent pertaining to Accounts Receivable referred to in Section 2.01(b)(iii) and Accounts Payable referred to in Section 2.02(b)(i); provided, that BSC shall provide to the Purchaser copies of all such books of account, invoices, shipping records and other records redacted to exclude any information not pertaining to such Accounts Receivable and such Accounts Payable.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Stryker Corp), Sale and Purchase Agreement (Boston Scientific Corp)
Sale and Purchase of Assets. At Subject to the terms and conditions of this Agreement, at the closing referred to in Section 2.02 (the "Closing"), each Asset Seller eCalton shall sell, assign, transfer transfer, convey and deliver to PurchaserBuyer, and Purchaser Buyer shall purchase purchase, acquire and accept from such Asset SellereCalton, free all of eCalton's right, title and clear interest in and to all of all Liens the assets, properties and goodwill owned by eCalton constituting or used in the Business (other than Permitted Liensbut excluding those assets referred to in Section 1.02 and listed in Section 1.02 of the eCalton Disclosure Schedule annexed hereto as Exhibit 1.01 (the "eCalton Disclosure Schedule"), on with such changes, deletions or additions thereto as may occur from the date hereof to the Closing in the ordinary course of business and consistent with the terms and subject to conditions of this Agreement (the conditions and exclusions set forth in this Agreement"Assets") including, all without limitation, the following:
(a) Internet domain names of such Asset Seller primarily all the furnishings, furniture, office supplies, tools, machinery and equipment and other fixed assets owned by eCalton and used or held for use in the Business, Business (the "Equipment");
(b) all quantities of inventory, including component parts and work in progress and any warranty associated therewith (the Franchise Agreements"Inventory");
(c) all contracts, but only agreements, leases, arrangements and/or commitments of any kind, whether oral or written, which relate to which such Asset Seller is a party and the Business or Assets, including without limitation those contracts listed on in Section 2.14(a1.01 (c) of the Company eCalton Disclosure ScheduleSchedule (the "Contracts"); Buyer shall receive a credit against the Purchase price specified in Section 2.01 for the unearned portion of any prepaid customer deposits for work not yet completed on Contracts, (c) including the unearned portion of deposits for web development projects and pre-paid web hosting fees calculated on a percentage of completion basis. Buyer shall also be entitled to collect the unearned portion of any accounts receivable associated with Contracts executed for which deposits have not been received by Seller calculated on a percentage of such Asset completion basis. If Buyer collects receivables earned by Seller arising from such Asset prior to closing, Buyer agrees to remit Seller’s Franchise Agreements, 's portion to Seller upon receipt.
(d) all claimscustomer lists, causes files and documents (including credit information) relating to customers and vendors of action, rights of recovery, rights of set-offthe Business, and warranties of such Asset Seller other business and financial records, files, books and documents relating to the Assets and/or the Business;
(at any time or in any manner arising or existinge) company Web sites and domain names, whether including without limitation ecalton.com, backoffice.ecalton.com, metatiki.com, privategates.com ▇▇▇ ▇▇▇▇▇▇▇an▇▇.▇▇▇.
(▇) ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ or inchoate▇▇▇ ▇rade ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇cations therefore which are owned by eCalton and used in the Business;
(g) municipal, known or unknownstate and federal franchises, contingent or otherwise) to the extent relating to the Business or any Purchased Assetslicenses, authorizations and all defenses and rights permits of offset or counterclaim to the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and (e) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectively, the “Purchased Assets”"Permits");
(h) all computers, including those items set forth on Section 1.2 of computer programs, computer databases, hardware and software owned or licensed by eCalton and used in the Company Disclosure Schedule. Purchaser shall not purchase, and the Purchased Assets shall not include, any assets, rights or properties of the Asset Sellers other than those set forth in subsections (a) – (e) above (all such assets, rights and properties not being purchased, the “Excluded Assets”).Business;
Appears in 1 contract
Sale and Purchase of Assets. At the closing under --------------------------- this Agreement (the "Closing"), each Asset Seller shall sell, assign, sell and transfer and deliver to PurchaserBuyer, and Purchaser Buyer shall purchase from such Asset Seller, free (i) all of Seller's right, title and clear of all Liens (other than Permitted Liens), on the terms interest in and subject to the conditions properties, assets and exclusions set forth rights of Seller that are used in this Agreementor are related to the conduct of the Business, all wherever such assets are located and whether real, personal or mixed, tangible or intangible, and (ii) the Trigon Stock (collectively, the "Purchased Assets"). Without limiting the generality of the foregoing, the Purchased Assets shall include the following assets owned by Seller and used in the Business:
(a) Internet domain names all those certain lots and pieces of such Asset ground, together with the buildings, structures and other improvements erected thereon, and all easements, rights and privileges appurtenant to any of the foregoing, owned by Seller primarily and located in Peters Township, McMurray, ▇▇▇▇▇ylvania ("Real Property"), as more particularly described in Schedule 2.01(a);
(b) all of the inventory, personal property, machinery, equipment, computers, vehicles, supplies, tools, furniture and fixtures that are owned by Seller and used or held for use in the Business, including those described in Schedule 2.01(b);
(bc) all know-how, trade secrets, trademarks, trade names, service marks, logos, licenses, patents, copyrights and applications and registrations, if applicable, for any of the Franchise Agreementsforegoing ("Intellectual Property") owned by Seller and used in the Business, but only including those described in Schedule 2.01(c);
(d) all rights of Seller under the purchase and sales orders and contracts, license agreements, supply agreements, labor contracts and other contracts and agreements to which such Asset Seller is a party and listed on Section 2.14(a) of the Company Disclosure Schedule, (c) the accounts receivable of such Asset Seller arising from such Asset Seller’s Franchise Agreements, (d) all claims, causes of action, rights of recovery, rights of set-off, and warranties of such Asset Seller (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise) to the extent relating that relate to the Business or any Purchased Assets("Contracts"), and all defenses and rights of offset or counterclaim to the extent relating to the Assumed Liabilities, including those listed in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and Schedule 2.01(d); and
(e) all books of Seller's cash, trade and records of such Asset Seller to the extent relating to the Business other notes and account receivables ((a) – (e) collectively, the “Purchased Assets”including accounts receivable from Buyer), including those advance payments and prepaid items set forth on Section 1.2 of and expenses arising from the Company Disclosure Schedule. Purchaser shall not purchase, and the Purchased Assets shall not include, any assets, rights or properties of the Asset Sellers other than those set forth in subsections (a) – (e) above (all such assets, rights and properties not being purchased, the “Excluded Assets”)Business.
Appears in 1 contract
Sale and Purchase of Assets. At (a) Subject to the Closingterms and conditions of this Agreement, each Asset including Section 3.10(a) hereof, at the Closing Seller shall sell, assigntransfer, transfer convey, assign and deliver to PurchaserBuyer and Buyer shall purchase, acquire and Purchaser shall purchase accept from such Asset Seller, free all the right, title and clear interest of Seller in and to all Liens (other than Permitted Liens), on the terms property and subject to the conditions assets owned by Seller and exclusions set forth in this Agreement, all (a) Internet domain names of such Asset Seller primarily used or held for use in the Business, of every nature, kind and description, wherever located, including, without limitation the following (bcollectively, the “Assets”):
(i) the Franchise Agreements, but only to which such Asset Seller is a party and listed on Section 2.14(a) of the Company Disclosure Schedule, All Tangible Assets;
(c) the accounts receivable of such Asset Seller arising from such Asset Seller’s Franchise Agreements, (dii) all Accounts Receivable;
(iii) all Inventory and Rental Assets;
(iv) all Contracts of Seller and all Bids of Seller;
(v) all Governmental Authorizations and all pending applications therefor and renewals thereof;
(vi) all rent/security deposits, credits, prepayments, prepaid expenses (as scheduled), and deferred items (other than deferred income Taxes), claims, deposits, refunds, claims for refunds and rights to offset in respect thereof, rights against third parties, causes of action, chooses in action, rights of recovery, rights of set-set off, and warranties rights of recoupment (including any such Asset Seller item relating to the payment of Taxes other than income Taxes), other prepaid items and all other intangible rights relating to the Assets or the Facilities, including, without limitation, those items as of September 30, 2006 listed on Schedule 2.1(a)(vi) (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise) to the extent not reduced in the Ordinary Course of Business since such date);
(vii) all insurance benefits, including rights and proceeds, arising from or relating to the Business Assets or the Assumed Liabilities prior to the Closing, unless expended in accordance with this Agreement;
(viii) all Seller Intellectual Property, including all going concern value, telephone, telecopy, website domains and e-mail addresses and listings and those items listed on Schedule 3.14(a), and any Purchased Assetsand all associated goodwill, including the name “Signature Special Event Services;”
(ix) all data and Records related to the operations of Seller, including client and customer lists and Records, referral sources, research and development reports and Records, production reports and Records, service and warranty Records, equipment logs, operating guides and manuals, financial and accounting Records, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and Records and, subject to Legal Requirements, copies of all personnel Records, and all defenses other printed, written or machine-readable materials in whatever form, including without limitation electronic databases, and rights whether held by Seller or stored on behalf of offset or counterclaim Seller by third parties, directly and exclusively related to any of the foregoing.
(b) Notwithstanding the foregoing, the transfer of the Assets pursuant to this Agreement shall not include the assumption of any Liability related to the extent relating Assets unless Buyer expressly assumes such Liability pursuant to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and (e) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectively, the “Purchased Assets”), including those items set forth on Section 1.2 of the Company Disclosure Schedule. Purchaser shall not purchase, and the Purchased Assets shall not include, any assets, rights or properties of the Asset Sellers other than those set forth in subsections (a) – (e) above (all such assets, rights and properties not being purchased, the “Excluded Assets”)2.3.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tvi Corp)
Sale and Purchase of Assets. At Prior to the Closing, each Asset Seller Purchaser shall sellestablish or cause its Affiliates to establish a 100% owned subsidiary ("Newco") in the Republic of Korea, assignand shall assign all of its rights and obligations under this Agreement to Newco without further consent of Seller. Following such assignment, transfer and deliver all references to Purchaser, the Purchaser in this Agreement shall be considered references to Newco as if Newco had originally executed this Agreement and Purchaser shall purchase from be relieved of any and all liability under this Agreement except that Amkor's obligation to pay the Purchase Price and to assume the Assumed Liabilities shall be discharged when Newco pays the Purchase Price and assumes the Assumed Liabilities. The Parties also understand that certain covenants of Seller shall extend to the original Purchaser under this Agreement (i.e., Amkor Technology, Inc., "Amkor"). In such Asset Sellercase, Newco and Amkor are collectively referred to as "Purchasing Parties". Subject to the terms and conditions hereof, at the Closing referred to in Section 1.8 below, Seller will sell, transfer, convey and assign to Purchaser, free and clear of all Liens of every kind, nature and description, except for the Excluded Assets (other than Permitted Liens), on the terms as defined in Section 1.2) or as otherwise disclosed and subject to the conditions and exclusions set forth agreed in this Agreement, and Purchaser will purchase from Seller, all of the assets as shall be listed on Schedule 1.1 (the "Asset List") and any other assets that are being used for or are substantially related to the Business including, without limitation, Seller's properties and business as a going concern and good will and assets existing on the date of Closing, wherever such assets are located and whether real, personal or mixed, tangible or intangible, 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 its books or Financial Statement (collectively, the "Purchased Assets"). The Purchased Assets shall include, without limitation, all of Seller's right, title and interest in and to the following, as the same may exist on the Closing Date:
(a) Internet domain names the Owned Real Properties together with the buildings, fixtures, structures and other improvements erected thereon, and together with all easements, rights and privileges appurtenant thereto, as more particularly described on the Asset List;
(b) all of such Asset Seller primarily Seller's machinery, equipment, tooling, dies, jigs, vehicles, spare parts and supplies being used for or held for use in substantially related to the Business, (b) including without limitation, the Franchise Agreements, but only to which such Asset Seller is a party and items listed on Section 2.14(a) of the Company Disclosure Schedule, Asset List;
(c) all of Seller's raw materials, work in process, parts, subassemblies, finished goods and other inventories being used for or substantially related to the accounts receivable Business, wherever located and whether carried on Seller's books of such Asset Seller arising from such Asset Seller’s Franchise Agreements, account;
(d) all claimsof Seller's other tangible assets being used for or substantially related to the Business, causes including office furniture, office equipment and supplies, computer hardware and software and vehicles;
(e) all of actionSeller's books, records, manuals, documents, books of account, correspondence, sales and credit reports, customer lists, literature, brochures, advertising material and the likes that are used for or are substantially related to the Business;
(f) all of Seller's rights of recoveryunder leases for property, rights of set-offwhether real or personal, used for or substantially related to the Business, and warranties all of such Asset Seller (at any time or in any manner arising or existingthe Seller's rights under all other contracts, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise) agreements and purchase and sale orders related to the extent Business (the "Assigned Contracts"), which Assigned Contracts will be assigned to Purchaser at or prior to the Closing and which shall be listed on Schedule 1.10;
(g) All of Seller's interest in governmental permits, licenses, registrations, orders and approval substantially relating to the Business or any Purchased Assets, and all defenses and rights of offset or counterclaim to the extent relating such permits, licenses, registrations, orders and approvals are separately transferable to Purchaser; and
(h) All right, title and interest of Seller in and to the Assumed Liabilitiesgoodwill incident to the Business other than those exclusively related to the businesses of Seller which are not to be transferred hereunder. The Parties understand that, while certain Intellectual Properties (including Licensed Intellectual Property) may be assigned to Purchaser, most of the Intellectual Properties may not be assigned to Purchaser, since they are also related to the other business of Seller which are not transferred to Purchaser hereunder. With respect to such Intellectual Properties which may be assigned to Purchaser, Seller shall sell, transfer, convey and assign to Purchaser, free and clear of all Liens of every kind, nature and description, all right, title and interest of Seller in each case including all proceedsand to such Intellectual Properties. With respect to the Intellectual Properties which may not be assigned to Purchaser, monies and recoveries therefrom received after the Effective Time, and (e) all books and records of such Asset Seller to the extent relating legally and/or contractually permissible, Seller hereby shall grant to Purchaser and its Affiliates, effective at the Closing Date, an irrevocable, worldwide, non-exclusive, perpetual, paid-up, royalty-free and transferable (and sub-licensable) license (or sub-license) to utilize such Intellectual Properties (including the Licensed Intellectual Property) which Seller has rights to use as of the Closing Date, after obtaining any and all consents necessary therefor for Purchaser to be able to operate the Business substantially in the manner as such Business was operated by Seller. For this purpose, Purchaser shall enter into one or more licensing agreements (the "IP Licensing Agreements") with the holders of relevant Intellectual Properties, including Seller itself, prior to the Business ((a) – (e) collectivelyClosing. All costs, if any, shall be payable by Seller to any third parties in connection with the transfer, licenses or sub-licenses for the benefit of Purchaser pursuant to this Agreement. In addition, the “Purchased Assets”), including those items set forth Parties agree that such IP Licensing Agreements will contain rights of Purchaser or Amkor to acquire the Intellectual Properties developed by Seller after the Closing Date on Section 1.2 mutually agreed and commercially reasonable terms. To the extent that there are any tangible or intangible assets used by Seller in connection with or otherwise necessary to the operation of the Company Disclosure Schedule. Purchaser shall Business that are not purchaseincluded in this Section 1.1 and are not specifically designated as Excluded Assets by Section 1.2, and the Purchased Assets shall not includeinclude an irrevocable, any assetsnonexclusive, rights perpetual, paid-up, royalty-free, transferable license, contract or properties lease to utilize such assets in connection with the operation of the Asset Sellers other than those set forth in subsections (a) – (e) above (Business after the Closing Date. To the extent that any such assets may not be licensed, contracted or leased, Seller shall take all steps required to assure that Purchaser obtains the benefit of such assets, rights and properties not being purchased, the “Excluded Assets”).
Appears in 1 contract
Sale and Purchase of Assets. At Subject to the Closingterms and conditions of this Agreement, each Asset on the Closing Date (defined below), Seller shall will sell, assign, transfer and deliver convey to PurchaserBuyer or its designees, and Purchaser shall purchase Buyer or its designees will purchase, acquire and accept from such Asset Seller, free and clear of Encumbrances, all Liens (other than Permitted Liens)of Seller’s rights, on the terms title and subject interest in and to the conditions and exclusions set forth in this Agreement, all (a) Internet domain names following assets of such Asset Seller primarily used or held for use in the Business, (b) the Franchise Agreements, but only to which such Asset Seller is a party and listed on Section 2.14(a) of the Company Disclosure Schedule, (c) the accounts receivable of such Asset Seller arising from such Asset Seller’s Franchise Agreements, (d) all claims, causes of action, rights of recovery, rights of set-off, and warranties of such Asset Seller (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise) to the extent relating to the Business or any Purchased Assets, and all defenses and rights of offset or counterclaim to the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and (e) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectively, the “Purchased Assets”)):
(a) all of Seller’s worldwide rights, including those items title, and interests in and to the trademarks, service marks, trade names, logos and corporate names set forth on Section 1.2 Schedule 2.1(a) hereto (whether registered or not), together with translations, adaptations, derivations and combinations thereof and including the goodwill of the Company Disclosure Schedule. Purchaser shall not purchasebusiness associated therewith, and all applications, registrations, renewals in connection therewith (collectively, the Purchased Assets shall not include“Marks”) as well as all rights to s▇▇, recover and retain damages for any assetspast, rights current or properties future infringement of the Asset Sellers other than those Marks.
(b) all of Seller’s worldwide rights, title and interests in and to all of Seller’s registered and unregistered copyrights and copyright registrations and applications related to the Marks including without limitation the copyright registrations set forth on Schedule 2.1(b) (collectively, the “Copyrights”);
(c) all of Seller’s domain names and all domain names registered on Seller’s behalf for use in subsections Seller’s business and corresponding registrations including without limitation the domain names set forth on Schedule 2.1(c) (acollectively, the “Domain Names”);
(d) – all trade and other accounts receivable owing to Seller on the Closing Date which shall be set forth on Schedule 2.1(d) to be attached hereto on the Closing Date, including the benefit of all collateral, security, guaranties, and similar undertakings received or held in connection therewith and any claim, remedy or other right related to the foregoing (the “Acquired Accounts Receivable”); provided, however that Acquired Accounts Receivable shall consist solely of the following: (i) accounts receivable listed on Schedule 3.5 less any accounts receivable collected in accordance with Section 5.4 and less any accounts receivable on which goods have been returned, plus (ii) accounts receivable generated by Seller after April 4, 2005 (x) in connection with goods sold to account debtors either listed on Schedule 3.5 or approved in advance by Buyer or (y) that Buyer agrees in its sole discretion to purchase;
(e) above the pairs of boots in the style numbers and quantity as set forth on Schedule 2.1(e) (all such assets, rights and properties not being purchased, the “Excluded AssetsInventory”); and
(f) any inventory returned by a customer that is the subject of any Acquired Accounts Receivable.
Appears in 1 contract
Sale and Purchase of Assets. At On the Closingterms and subject to the conditions contained in this Agreement, each Asset on the Closing Date, Buyer shall purchase from Seller, and Seller shall sell, convey, assign, transfer and deliver to Purchaser, and Purchaser shall purchase from such Asset SellerBuyer, free and clear of all Liens (other than except for Permitted Liens) by bills of sale, assignments and other instruments reasonably satisfactory to Buyer and its counsel, all of Seller's right, title and interest in and to the materially necessary assets, properties, rights, titles and interests of every kind and nature owned by Seller as of the Closing Date, whether tangible, intangible or personal and wherever located and by whomever possessed, that are primarily used in and materially necessary to the conduct of the Business as conducted by the Seller Prior to the date hereof, but excluding all Excluded Assets (collectively, the "PURCHASED ASSETS"), on the terms including without limitation, all of Seller's right, title and subject interest in and to the conditions and exclusions set forth in this Agreement, all (a) Internet domain names following assets to the extent materially necessary to the conduct of such Asset Seller primarily used or held for use in the Business, owned by Seller and used primarily in connection with the operation of the Business:
(bi) all rights existing under each contract, agreement or arrangement listed and expressly specified to be assumed by Buyer on the Franchise Agreementsattached CONTRACTS SCHEDULE and under each Immaterial Assumed Contract; (ii) all copyrights, trademarks, trade names and other Intellectual Property Rights and all goodwill associated therewith, including, without limitation, the names of each of the Purchased Magazines, but only excluding any portion of such names using "CurtCo," "CurtCo Freedom Group" or derivations thereof (the parties hereto expressly acknowledge and agree that the trademarks included in the Purchased Assets are assigned to Buyer in conjunction with Buyer's acquisition of the business of Seller to which such Asset Seller is a party and listed on Section 2.14(a) of the Company Disclosure Scheduletrademarks pertain, (c) the accounts receivable of such Asset Seller arising from such Asset Seller’s Franchise Agreements, (d) all claims, causes of action, rights of recovery, rights of set-off, and warranties of such Asset Seller (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise) to the extent relating to the Business or any Purchased Assets, and all defenses and rights of offset or counterclaim to the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and (e) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectively, the “Purchased Assets”as an ongoing business), including those items set forth on Section 1.2 of the Company Disclosure Schedule. Purchaser shall not purchase, and the Purchased Assets shall not include, any assets, rights or properties of the Asset Sellers other than those set forth in subsections (a) – (e) above (all such assets, rights and properties not being purchased, the “Excluded Assets”).;
Appears in 1 contract
Sources: Asset Sale and Purchase Agreement (Petersen Companies Inc)
Sale and Purchase of Assets. At the Closing, each Asset Seller shall sell, assign, transfer and deliver to Purchaser, and Purchaser shall purchase from such Asset Seller, free and clear of all Liens (other than Permitted Liens), on On the terms and subject to the conditions and exclusions set forth in of this Agreement, at the Closing (as hereinafter defined) Seller shall sell, assign, transfer, convey and deliver to Buyer, free and clear of all liens, encumbrances, pledges, charges or adverse claims of any kind or character, other than Permitted Encumbrances (a) Internet domain names collectively, “Encumbrances”), and Buyer shall purchase from Seller, all of such Asset Seller primarily the personal property and trade fixtures located upon or used or held for use in the operation of the Business, including without limitation the personal property and fixtures hereinafter described (b) the Franchise Agreements, but only to which such Asset Seller is a party and listed on Section 2.14(a) of the Company Disclosure Schedule, (c) the accounts receivable of such Asset Seller arising from such Asset Seller’s Franchise Agreements, (d) all claims, causes of action, rights of recovery, rights of set-off, and warranties of such Asset Seller (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise) to the extent relating to the Business or any Purchased Assets, and all defenses and rights of offset or counterclaim to the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and (e) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectively, the “Purchased Assets”):
(a) all of the items of furniture, trade fixtures, removable leasehold improvements and equipment used in connection with the Business;
(b) all of Seller’s inventory of accessories associated with Cricket Communications, Inc. (“Cricket”), existing at the Premises on the Closing Date (other than the Phone Inventory, as defined below);
(c) all of the Seller’s signs used in connection with the Business;
(d) the cash registers/computers used in connection with the Business located at the Premises, and all software relating to the operation of the Business, including those items without limitation software relating or pertaining to the accounting system used in the Business located at the Premises (other than the TeleTracker POS system, as described below);
(e) all of Seller’s rights against its suppliers with respect to express or implied warranties made in the sale to Seller of assets comprising any part of the Purchased Assets;
(f) all of Seller’s books, records, files and papers relating to the conduct of the Business located at the Premises at any time prior to the Closing, other than Seller’s corporate minute book and related corporate records;
(g) to the extent transferable, all permits, authorizations and licenses used by Seller in the conduct of the Business;
(h) all contracts and agreements, whether oral or written, used by Seller in the conduct of the Business that are set forth on Section 1.2 Assumed Contracts Schedule, attached hereto as Schedule 1.1(h) (all of such contracts and agreements, being hereinafter collectively referred to as the Company Disclosure Schedule. Purchaser shall not purchase, “Assumed Contracts”);
(i) any and all goodwill associated with the Business and the Purchased Assets shall Assets; and
(j) any and all other properties, assets and rights of Seller which are used in the Business at the Premises and not include, any assets, rights expressly listed or properties of the Asset Sellers other than those set forth referred to in subsections (a) – (e) above (all such assets, rights and properties not being purchased, the “Excluded Assets”)Section 1.2.
Appears in 1 contract
Sources: Asset Purchase Agreement (Uron Inc)
Sale and Purchase of Assets. At the Closing, each Asset Seller shall sell, assign, transfer and deliver to Purchaser, and Purchaser shall purchase from such Asset Seller, free and clear of all Liens (other than Permitted Liens), on On the terms and subject to the conditions and exclusions set forth in this Agreement, Sellers shall sell, assign, convey and transfer to SOLD, and SOLD shall purchase from Sellers, at the Closing, the assets of Sellers comprising the Business as such assets are more particularly described in this Section 2 (the "Assets"), free and clear of all liens and encumbrances; provided that SOLD shall not purchase and acquire from Sellers the excluded assets described on Schedule 2 hereto (a) Internet the "Excluded Assets"). The Assets to be sold, assigned, conveyed and transferred hereunder shall be all of the assets of Sellers other than the Excluded Assets, including the following:
2.1. All of Sellers' right, title and interest in and to the Websites, including the domain names of such Asset Seller primarily the Websites, the tradenames under which the Websites and the Business are operated, all (except as excluded on Schedule 2) domain names owned by Sellers including those listed on Schedule 2.1, and all other intellectual property owned by Sellers and used or held for use useful in the operation of the Websites or the Business other than the Excluded Assets;
2.2. All of the fixed assets and equipment listed on Schedule 2.2 attached hereto (the "Fixed Assets");
2.3. All of the books and records of the Sellers identified by SOLD within ten (10) days following the Closing pertaining solely to the Assets and Business, including files, statistics, financial information, operating data, sales, distribution and marketing information, information related to suppliers and related items, and such other and further information as is maintained by the Seller relating solely to the Assets and Business, but not including Sellers' corporate records or income tax records ("Books"); provided that Sellers shall retain copies of any original Books SOLD removes from Sellers' offices;
2.4. All of Sellers' lists of registered users of the Websites, which shall include such information regarding registered users as is maintained by Sellers (the "Registered User Lists"). Such Registered User Lists shall be maintained by SOLD in accordance with the terms and conditions of any privacy policies set forth on Sellers' Websites;
2.5. To the extent assignable, all of Sellers' permits, licenses, consents and approvals required under any applicable law, statute, ordinance, code, rule or regulation, and required to operate the Business;
2.6. Sellers' goodwill associated with the Assets and the Business, including the exclusive right to use the name "ChannelSpace Entertainment" and all variations and derivations thereof;
2.7. Sellers' rights under those certain contracts identified on Schedule 2.7 attached hereto, as such schedule may be updated or modified by SOLD in SOLD's sole discretion prior to or at the Closing by written notice to CSEI (b) as so updated or modified, the Franchise Agreements"Assigned Contracts");
2.8. To the extent owned by Sellers, but only options for 2,000,000 shares of GavelNet, Inc. stock, options related to which such Asset Seller is a party and listed on Section 2.14(a) of the Company Disclosure ScheduleCopernicus search engine, (c) the accounts receivable of such Asset Seller arising from such Asset Seller’s Franchise Agreements, (d) all claims, causes of action, rights of recovery, rights of set-off, and warranties of such Asset Seller (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or inchoateoptions and RealMedia, known or unknown, contingent or otherwise) to the extent relating to the Business or any Purchased Assets, and all defenses and rights of offset or counterclaim to the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and Inc. options (e) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectively, the “Purchased Assets”"Options"). CSEI represents and warrants that the Options constitute all options for the purcahse of securities owned by Sellers. SOLD acknowledges and agrees that the Options are being transferred to SOLD "as is" without any representations or warranties as to ownership, including those items set forth on Section 1.2 title, value or marketability;
2.9. The issued and outstanding capital stock of Discribe if SOLD in its sole discretion determines, by written notice to CSEI within forty-five (45) days following closing, to acquire such stock; and
2.10. Any other tangible or intangible assets of the Company Disclosure Schedule. Purchaser shall not purchaseSellers used or useful in the Business, and the Purchased Assets shall not include, any assets, rights or properties of the Asset Sellers other than those set forth in subsections (a) – (e) above (all such assets, rights and properties not being purchased, the “Excluded Assets”).
Appears in 1 contract
Sale and Purchase of Assets. At the Closing, each Asset Seller shall sell, assign, transfer and deliver to Purchaser, and Purchaser shall purchase from such Asset Seller, free and clear of all Liens (other than Permitted Liens), on the terms and subject to the conditions and Table of Contents exclusions set forth in this Agreement, all (a) Internet domain names of such Asset Seller primarily used or held for use in the Business, (b) the Franchise Agreements, but only to which such Asset Seller is a party and listed on Section 2.14(a) of the Company Disclosure Schedule, (c) the accounts receivable of such Asset Seller arising from such Asset Seller’s Franchise Agreements, (d) all claims, causes of action, rights of recovery, rights of set-off, and warranties of such Asset Seller (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise) to the extent relating to the Business or any Purchased Assets, and all defenses and rights of offset or counterclaim to the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and (e) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectively, the “Purchased Assets”), including those items set forth on Section 1.2 of the Company Disclosure Schedule. Purchaser shall not purchase, and the Purchased Assets shall not include, any assets, rights or properties of the Asset Sellers other than those set forth in subsections (a) – (e) above (all such assets, rights and properties not being purchased, the “Excluded Assets”).
Appears in 1 contract
Sale and Purchase of Assets. At the Closing, each Asset Seller shall sell, assign, transfer and deliver to Purchaser, and Purchaser shall purchase from such Asset Seller, free and clear of all Liens (other than Permitted Liens), on the terms and subject Subject to the terms, conditions and exclusions set forth in this Agreement, Seller hereby sells, transfers and assigns to Purchaser, and Purchaser hereby purchases and acquires from Seller, the Business as a going concern, including all (a) Internet domain names of such Asset Seller primarily used or held for use in the Business, (b) the Franchise Agreements, but only to which such Asset Seller is a party and listed on Section 2.14(a) of the Company Disclosure Scheduleassets, (c) the accounts receivable of such Asset Seller arising from such Asset Seller’s Franchise Agreementsproperties, (d) all claims, causes of actiongood will, rights and business of recovery, rights of set-off, and warranties of such Asset Seller (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise) to the extent relating to the Business owned by Seller of every type and description, including real, personal, tangible and intangible, wherever located and whether or any Purchased Assets, and all defenses and rights of offset or counterclaim to not reflected on the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and (e) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectively, the “Purchased Assets”), as the same shall exist on the Effective Date, including, without limitation, the following:
(a) all leases or rental agreements, including but not limited to inactive or charged off Hire Agreements, all of the contracts, agreements, orders, engagements and arrangements (whether written or oral) between Seller and customers of the Business for the supply of goods or services by Seller in the ordinary course of trading in relation to the Business which exist as of the Effective Date, including the benefit thereof, instruments or arrangements relating to the Business, including, but not limited to, all of Seller’s accounts and rights to receive payments and other forms of receivables, whether by installments, deferred payments, rental payments or otherwise, including but not limited to those items listed or described in Schedule 1.1(a) which shall be delivered to Purchaser currently with the execution of this Agreement (the “Hire Agreements”), other than those Hire Agreements (and the equipment leased pursuant to such Hire Agreement) that are currently classified by Seller as “inactive” and that were originated during the Lapse Period or the Non-conforming Period (as defined in Section 6.21) (the “Excluded Inactive Hire Agreements”). For the purposes of the remainder of this Agreement, the terms “Hire Agreements” and “Purchased Assets” shall not include the Excluded Inactive Hire Agreements. For the avoidance of doubt, this Agreement this Agreement shall constitute an absolute assignment to the Purchaser of the Hire Agreements;
(b) with respect to any Hire Agreements, all documents, contracts and agreements, notes chattel paper, other evidences of indebtedness, security agreements, conditional sale contracts, financing leases, deeds of trust, certificates of title, and any other evidences or documents of ownership, guarantees, recourse agreements and all other security and other instruments or documents of every kind related to the Hire Agreements and/or the Collateral executed or delivered in connection with such Hire Agreements (collectively, the “Hire Agreement Documents”), including but not limited to those documents and agreements specified on Schedule 1.1(b);
(c) the right, title and ownership of the Goods (as the term is defined or described in each Hire Agreement and referred to herein as the “Goods”) described in each Hire Agreement or which otherwise secures the payment or performance pursuant to each Hire Agreement, including all proceeds thereof (the “Collateral”);
(d) except as set forth on Section 1.2 Schedule 1.1(d), (i) all rentals, installments and other payments due or to become due under the Hire Agreements and the Hire Agreement Documents, including, without limitation, all amounts payable by the person obligated to make payment under a Hire Agreement (the “Account Debtor”) upon any extension of the Company Disclosure Schedule. Purchaser shall not purchaseterm of the Hire Agreement or upon the exercise of any renewal or purchase option and all rights to the proceeds of insurance, if any exists, covering the Collateral, (ii) all of the rights and remedies of Seller under the Hire Agreements and the Hire Agreement Documents, including the right to take in Seller’s name any and all proceedings, legal, equitable or otherwise that Seller could otherwise take save for those rights and remedies under this Agreement, and (iii) all proceeds (other than the Purchased Assets shall not includeamounts payable by Purchaser to Seller pursuant and subject to the terms and conditions of this Agreement) of the sale or other disposition of the Hire Agreements, any assetsHire Agreement Documents and/or the Collateral;
(e) to the extent transfer is permitted by applicable law, all franchises, approvals, permits, licenses, orders, registrations, certificates, variances, qualifications and other similar rights or properties governmental authorization and approvals relating to the Hire Agreements, Hire Agreement Documents and for the Collateral, as such items are specified in Schedule 4.1.6(a), (collectively, the “Licenses and Permits”);
(f) all client, customer and other lists, if any exist, related to the Hire Agreements, Hire Agreement Documents and/or the Collateral and all registered or unregistered intellectual property rights (including without limitation, all copyright and database rights) contained in such lists;
(g) all database or computer files related to the Hire Agreements, Hire Agreement Documents or the Collateral (“Customer Database”), a copy of the Asset Sellers other than those which Seller may keep for purposes set forth in subsections Section 4.1.26(g), and all registered or un-registered intellectual property rights (aincluding without limitation, all copyright and data base rights) – contained in the Customer Database; and
(eh) above (all such assets, rights and properties not being purchased, payments paid by the “Excluded Assets”)Accounts Debtors or owed by them as of the Effective Date.
Appears in 1 contract
Sale and Purchase of Assets. At Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, each Asset Seller shall sell, assignconvey, transfer transfer, assign and deliver to Purchaser, and Purchaser shall purchase and accept from such Asset Seller, free all of Seller's right, title and clear interest in and to the assets of all Liens Seller of every type and description that are currently exclusively used in the operation of the Business, whether tangible or intangible, real, personal or mixed, wherever located, except for the Excluded Assets (other than Permitted Liensthe "Purchased Assets"), on the terms and subject to the conditions and exclusions set forth in this Agreementincluding, without limitation, all of Seller's right, title and interest in the following:
(a) Internet domain names all of such Asset Seller primarily used or held for use in Seller's interest under the Business, leases of real property set forth on Schedule 2.1(a) (the "Real Property Leases");
(b) the Franchise Agreements, but only to which such Asset Seller is a party all equipment and listed machinery set forth on Section 2.14(aSchedule 2.1(b) of the Company Disclosure Schedule, (c) the accounts receivable of such Asset Seller arising from such Asset Seller’s Franchise Agreements, (d) all claims, causes of action, rights of recovery, rights of set-off, and warranties of such Asset furniture owned by Seller (at any time or in any manner arising or existing, whether except for the furniture owned by Dare ▇. ▇▇▇▇▇▇▇▇ and set forth on Schedule 2.2(k)) at Closing, which are exclusively used by Seller in the Business (the "Equipment");
(c) Seller's interest at Closing under the leases of equipment and machinery set forth on Schedule 2.1(c), which are exclusively used by Seller in the Business (the "Equipment Leases");
(d) all contracts, agreements and undertakings (whether oral or inchoate, known or unknown, contingent or otherwisewritten) to the extent which Seller is a party relating exclusively to the Business Business, including without limitation, the employment agreement between Seller and Dare ▇. ▇▇▇▇▇▇▇▇ dated September 23, 1993 (as amended, supplemented or any Purchased Assets, and all defenses and rights of offset or counterclaim to otherwise modified) (the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and "Contracts");
(e) all books licenses, permits and records of such Asset other like authorizations possessed by Seller and necessary to the extent conduct of operations of the Business (the "Permits");
(f) all accounts receivable (other than receivables from Seller or any of its Affiliates) in respect of the Business;
(g) all rights of Seller at Closing in and to prepaid taxes, rents, utility charges and other obligations, and prepaid expenses and other prepaid benefits exclusively relating to the Business (the "Prepaid Expenses");
(ah) – all raw materials, component parts, work-in-progress and finished goods inventory owned by Seller at Closing which are exclusively used by Seller in the Business to the extent that such items do not infringe Seller Intellectual Property, but excluding all raw materials, component parts, work-in-progress and finished goods inventory listed or described on Schedule 2.2(h) (ethe "Inventory");
(i) collectivelyall rights of Seller to the Intellectual Property listed on Schedule 2.1(i);
(j) the Books and Records;
(k) all computer hardware, stored data, computer software and computer software documentation owned by Seller at Closing exclusively relating to the “Purchased Assets”), including Business (except for those items set forth on Section 1.2 Schedule 2.2(i));
(l) to the extent transferable, all rights of Seller to the Company Disclosure Schedule. Purchaser shall not purchasetelephone numbers, including any toll-free numbers, and facsimile telephone numbers assigned exclusively to Seller by Seller's telephone service providers; and
(m) all claims, choses in action and rights of action by Seller against third parties, including but not limited to claims for refunds against governmental agencies or other entities, rebates, refunds, prepaid discounts, allowances or other monies or consideration received by Seller or any of its Affiliates, which exclusively relate to the Purchased Assets shall not includeor the Assumed Liabilities. Notwithstanding anything to the contrary contained in this Agreement, Seller may retain copies of any assetsContract, rights Books and Records or properties of any other document or materials to the Asset Sellers other than those set forth extent that Seller (i) is required to retain it by Law, (ii) may need such copies for tax purposes, in subsections (a) – (e) above (all such assets, rights and properties not being purchased, the “connection with product liability claims or claims related to Retained Liabilities or Excluded Assets”), in which case, Seller shall use such copies only in connection therewith or (iii) may need such copies to carry out the terms or purposes of this Agreement.
Appears in 1 contract
Sale and Purchase of Assets. At On the ClosingClosing Date (as hereinafter defined) and subject to the terms and conditions contained in this Agreement, each Asset Seller shall sell, assigntransfer, transfer assign and deliver to PurchaserBuyer, and Purchaser Buyer shall purchase purchase, assume and accept from such Asset Seller, free and clear of all Liens (other than Permitted Liens), on the terms liens and subject to the conditions and exclusions set forth in this Agreementencumbrances, all right, title and interest in and to all of the following assets owned by Seller (the "Assets"):
(a) Internet domain names of such Asset Seller primarily used or held for use Seller's interest in the Businessone hundred and seven (107) existing or pending leases for Seller's kiosk stores listed in Schedule 1(a) attached hereto, and the leases for any other locations as to which an Additional Store Exercise is made pursuant to Section 4 below (the "Stores"); and
(b) Store kiosks and any and all leasehold improvements, fixtures, benches, point-of-sale registers, telephones, credit authorization devices, stools, safes, security panels and existing security systems at the Franchise AgreementsStores (all of which are being sold "as is, but only to which such Asset Seller is a party and listed on Section 2.14(a) of the Company Disclosure Schedule, (c) the accounts receivable of such Asset Seller arising from such Asset Seller’s Franchise Agreements, (d) all claims, causes of action, rights of recovery, rights of set-off, and warranties of such Asset Seller (at any time where is" without warranty or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise) representation except as specifically set forth herein); except to the extent relating that Buyer in its discretion determines not to the Business acquire any such assets; provided that Seller must consent, such consent not to be unreasonably withheld or delayed, to any Purchased Assets, and all defenses and rights decision by Buyer not to acquire a Store kiosk; provided that Buyer's covenant to dispose of offset or counterclaim to the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and (e) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectively, the “Purchased Assets”), including those items set forth on Section 1.2 of the Company Disclosure Schedule. Purchaser shall not purchase, and the Purchased Assets shall not include, any assets, rights or properties of the Asset Sellers other than those set forth in subsections (a) – (e) above (all such assets, rights including without limitation paying off or otherwise eliminating Seller's obligations under the leases for the Stores, at Buyer's sole cost and properties expense, shall be a permissible condition to the granting of Seller's consent hereunder. As to any pending Stores for which a kiosk has not being purchasedyet been constructed, the “Excluded Assets”)Buyer shall be responsible for constructing, installing and paying for such kiosk.
Appears in 1 contract
Sale and Purchase of Assets. (a) At the Closing, each Asset Seller shall agrees to sell, assign, transfer and deliver or deliver, as the case may be, to PurchaserBuyer, and Purchaser shall ▇▇▇▇▇ agrees to purchase and acquire from such Asset Seller, Seller free and clear of any Encumbrances, all Liens right, title and interest in, to and under and under all of the tangible and intangible assets, properties, and rights of every kind and nature and wherever located (other than Permitted Liensthe Excluded Assets), which relate to, or are used or held for use in connection with, the Tech Asset (collectively, the “Acquired Assets”), including the following:
(i) all Assigned Contracts and all rights, benefits and interests thereunder from and after the Closing;
(ii) all the Seller Intellectual Property and all files and disclosures relating thereto, and all goodwill associated therewith, licenses and sublicenses granted in respect thereto and rights thereunder, together with all claims against third parties with respect thereto;
(iii) all federal, state, local and foreign permits and authorizations issued by any Governmental Authority in respect of the Tech Asset, which are held by Seller or his Affiliates, as applicable, including without limitation those listed on Schedule 1.1(a)(vi) (the “Permits”);
(iv) all rights to any action of any nature available to or being pursued by Seller to the extent related to the Tech Asset, the Acquired Assets, whether arising by way of counterclaim or otherwise; and
(v) all rights of Seller under warranties, indemnities and all similar rights against third parties to the extent related to any Acquired Asset.
(vi) all insurance benefits, including rights and proceeds, arising post-Closing from or relating to the Acquired Assets;
(vii) all goodwill, going concern value and other intangible rights with respect to the Acquired Assets (the “Goodwill”). Notwithstanding the foregoing, the transfer of the Acquired Assets pursuant to this Agreement shall not include the assumption of any Liability related to the Acquired Assets unless the Buyer expressly assumes that Liability pursuant to Section 1.1(c).
(b) On the terms and subject to the conditions and exclusions set forth contained in this Agreement, all (a) Internet domain names of such Asset Seller primarily used or held for use in the Business, (b) the Franchise Agreements, but only to which such Asset Seller is a party and listed on Section 2.14(a) of the Company Disclosure Schedule, Buyer shall not assume any Liabilities. All Liabilities are Excluded Liabilities.
(c) Seller and his Affiliates shall retain, and shall be responsible for paying, performing and discharging when due, and Buyer shall not assume and shall not be responsible to pay, perform or discharge, any Liabilities of Seller or his Affiliates, or any Liabilities of any kind or nature whatsoever (collectively, including the accounts receivable matters set forth below, the “Excluded Liabilities”), and, notwithstanding anything to the contrary herein, all of such Asset Seller arising from such Asset Seller’s Franchise Agreements, the following are Excluded Liabilities for purposes of this Agreement:
(di) all claimsLiabilities under the Assigned Contracts to be paid, causes of action, rights of recovery, rights of set-off, and warranties of such Asset Seller (at any time performed or in any manner arising otherwise discharged on or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise) prior to the extent Closing Date or relating to a breach or default by Seller or his Affiliates on or prior to the Closing Date;
(ii) all Liabilities arising out of or relating to any Acquired Asset on or prior to the Closing Date or resulting from the ownership, operation or control of the Acquired Assets on or prior to the Closing Date, including all such Liabilities (i) arising out of or relating to the Business design, manufacture, testing, marketing, labeling, distribution, use or sale of any Purchased Assetsproducts, and (ii) relating to a violation of Law or breach of Contract, or (iii) relating to any Proceeding, whether or not presently asserted;
(iii) all defenses and rights of offset or counterclaim Liabilities related to the extent return of products sold on or prior to the Closing Date, recall of Products sold on or prior to the Closing Date, warranty claims, credits, rebates and refunds related to products sold on or prior to the Closing Date and product liability or similar claims for injury to person or property, regardless of when made or asserted, relating to products sold on or prior to the Assumed LiabilitiesClosing Date;]
(iv) all Liabilities arising in connection with the Acquired Assets based on infringement, misappropriation or other violation of the Intellectual Property of any Person, or allegation thereof, in each case including all proceeds, monies and recoveries therefrom received after on or prior to the Effective Time, and Closing Date;
(ev) all books and records of such Asset Seller Liabilities with respect to the extent relating Indebtedness of Seller or his Affiliates;
(vi) all Liabilities of Seller or any member of any consolidated, affiliated, combined or unitary group of which Seller is or has been a member for Taxes;
(vii) all Liabilities of Seller or any member of any consolidated, affiliated, combined or unitary group of which Seller is or has been a member for Taxes attributable to the Business Acquired Assets for any and all Tax periods ending on or prior to the Closing Date and the portion ending on the Closing Date of any Tax period that includes but does not end on the Closing Date ((a) – (e) collectively, the “Purchased AssetsPre-Closing Tax Period”), including those items set forth on Section 1.2 any Taxes which are not due or assessed until after the Closing Date but which are attributable to such Pre-Closing Tax Period;
(viii) all Taxes that arise out of the Company Disclosure Schedule. Purchaser shall consummation of the transactions contemplated hereby or other Taxes of Seller of any kind or description that become a liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or law,
(ix) all Taxes described in Section 4.4 that are the responsibility of Seller;
(x) all current liabilities related to the Acquired Assets as of Closing, including all outstanding accounts payable under the Assigned Contracts as of such time (whether or not purchaseinvoiced prior to or after such time);
(xi) all Liabilities arising out of or relating to the businesses of Seller or his Affiliates other than (A) the Acquired Assets, or (B) the Excluded Assets;
(xii) all fees and expenses of counsel, accountants, consultants and advisors incurred by Seller or his Affiliates in connection with the negotiation and preparation of this Agreement, the Ancillary Documents and the Purchased Assets shall not includeTransactions; and
(xiii) all Liabilities arising under any unclaimed property or escheat Laws to the extent related to facts or conditions existing on or prior to the Closing Date or resulting from the ownership, any assets, rights operation or properties control of the Asset Sellers other than those set forth in subsections (a) – (e) above (all such assets, rights and properties not being purchased, Acquired Assets on or prior to the “Excluded Assets”)Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Safe & Green Development Corp)
Sale and Purchase of Assets. At Except as set forth in Section 1.1(c), at the Closing, each Asset Seller shall (on behalf of Seller and its Affiliates to) sell, assign, convey, transfer and deliver to Purchaser, and Purchaser shall purchase purchase, acquire and accept from such Asset Seller (and Seller’s Affiliates), all of Seller’s (and Seller’s Affiliates’) right, title and interest in, to and under the following assets and rights (the “Acquired Assets”), free and clear of all Liens (other than Permitted Liens), on the terms and subject to the conditions and exclusions set forth in this Agreement, all any Encumbrances:
(a) Internet domain names all Intellectual Property owned by Seller (and Seller’s Affiliates) as of the Closing that relates exclusively to the Implant Activities, including such Asset Intellectual Property described on Schedule 1.1(a), (collectively, the “Acquired Intellectual Property”), together with the rights of Seller primarily used (and Seller’s Affiliates) as of the Closing to ▇▇▇ for, to assert claims against, and to pursue remedies against past, present and future infringement or held for use in misappropriation of the BusinessAcquired Intellectual Property; provided, however, (i) Seller (and Seller’s Affiliates) shall have no obligation under this Agreement or otherwise to document, reduce to any tangible, digital or other form or medium, or physically convey, transfer or deliver to Purchaser, any Acquired Intellectual Property that was not documented or reduced to a tangible, digital or other form or medium by Seller prior to the Closing, which shall not be deemed to narrow the scope of the Acquired Intellectual Property, and (ii) the Acquired Intellectual Property shall not include any of Seller’s or any of Seller’s Affiliates’ rights or privileges relating to any privileged communications among Seller, any of Seller’s Affiliates or their respective legal counsel or any attorney, including any work-product created thereby;
(b) the Franchise Agreements, but only to which such Asset Seller is a party and listed Approvals described on Section 2.14(aSchedule 1.1(b) of (the Company Disclosure Schedule, “Acquired Approvals”);
(c) the accounts receivable of such Asset Seller arising from such Asset Seller’s Franchise Agreementsmanufacturing equipment and spare parts described on Schedule 1.1(c) (the “Acquired Equipment”); provided, however, that title to, and ownership of, the Thermal Oxidizer referenced on Schedule 1.1(c) shall not be transferred at the Closing, but instead on the Thermal Oxidizer Transition Date as defined and provided in the Lease;
(d) all claimsthe raw materials, causes work-in-process and finished goods inventory described on Schedule 1.1(d), including any finished goods manufactured by Seller from such raw materials and work-in-process after November 5, 2019 and prior to the Closing, but excluding such raw materials and work-in-process utilized by Seller in the ordinary course after November 5, 2019 and the Closing and any finished goods sold or delivered to Purchaser prior to the Closing (the “Acquired Inventory”);
(e) the contracts and purchase orders described on Schedule 1.1(e) and any license agreements for software or other technology incorporated in any of actionthe Acquired Equipment (collectively, rights of recovery, rights of set-off, the “Acquired Contracts”);
(f) the prepaid expenses described on Schedule 1.1(f); and
(g) the books and warranties of such Asset records owned by Seller (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwiseand Seller’s Affiliates) as of the Closing to the extent relating to the Business or any Purchased AssetsImplant Activities, and all defenses and rights of offset or counterclaim to including the extent relating to the Assumed Liabilities, in each case including all proceeds, monies and recoveries therefrom received after the Effective Time, and (e) all books and records described on Schedule 1.1(g) (the “Acquired Books and Records”); provided, however, the Acquired Books and Records shall not include any of such Asset Seller to the extent Seller’s or any of Seller’s Affiliates’ rights or privileges relating to the Business ((a) – (e) collectivelyany privileged communications among Seller, the “Purchased Assets”)any of Seller’s Affiliates or their respective legal counsel or any attorney, including those items set forth on Section 1.2 of the Company Disclosure Schedule. Purchaser shall not purchase, and the Purchased Assets shall not include, any assets, rights or properties of the Asset Sellers other than those set forth in subsections (a) – (e) above (all such assets, rights and properties not being purchased, the “Excluded Assets”)attorney work-product created thereby.
Appears in 1 contract
Sale and Purchase of Assets. At Subject to the terms and conditions of this Agreement, at the Closing, each Asset the applicable Seller shall sell, assign, transfer transfer, deliver and deliver convey to Purchaserthe St. Maarten Buyer or the U.S. Buyer, as applicable, and Purchaser shall purchase the St. Maarten Buyer or the U.S. Buyer, as applicable, will purchase, acquire and accept from such Asset the applicable Seller all of the applicable Seller’s right, title and interest in the following assets (but excluding the Excluded Assets) (collectively, the “Seller Assets”), free and clear of all Liens (other than Permitted Liens)): (i) all Receivables held by the Sellers, including all Receivables reflected on the terms and subject to the conditions and exclusions Closing Statement; 1 (ii) all Transferred Intellectual Property, including all Transferred Intellectual Property set forth in this Agreement, all (a) Internet domain names of such Asset Seller primarily used or held for use in the Business, (b) the Franchise Agreements, but only to which such Asset Seller is a party and listed on Section 2.14(a4.21(a) of the Company Disclosure Schedule, along with all income, royalties, damages and payments due or payable as of the Closing Date or thereafter (cincluding damages and payments for past, present or future infringements or misappropriations thereof, the right to ▇▇▇ and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world); (iii) all rights under the Contracts set forth on Schedule 1.1(a)(iii) attached hereto (the “Purchased Contracts”); (iv) the accounts receivable Seller Transferred Owned Real Property; (v) the Seller Transferred Leased Real Property (and the leases related thereto); (vi) all improvements and all machinery, equipment, fixtures and trade fixtures; (vii) all furniture, office supplies, production supplies and any other supplies, spare parts, other miscellaneous supplies (including telephones, fax machines, copiers and computers and related software), tooling, molds, dies, vehicles and other tangible property of such Asset Seller arising from such Asset Seller’s Franchise Agreementsany kind; (viii) all prepayments, prepaid expenses and deposits (dother than those related to Excluded Assets or Retained Liabilities) and advances (including employee advances), including all prepayments, prepaid expenses and deposits and advances reflected on the Closing Statement; (ix) all claims, refunds, credits, causes of action, rights of recovery, recovery and rights of set-off, and warranties off of such Asset Seller any kind (at any time other than those related to Excluded Assets or in any manner arising or existingRetained Liabilities), whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent arising by way of counterclaim or otherwise; (x) the right to receive and retain mail, payments of receivables and other communications (other than those related to Excluded Assets or Retained Liabilities) and all telephone numbers used by the Business; (xi) all rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets; (xii) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials; (xiii) all insurance benefits, including rights and proceeds, arising from or relating to the Business Business, the Purchased Assets or the Assumed Liabilities (including any Purchased Assetssuch benefits arising from or related to the Insurance Policies); (xiv) all Benefit Plans and all of the rights and powers of the Sellers under and with respect to such Benefit Plans, and all defenses any and rights of offset each trust, insurance Contract, annuity Contract, funding arrangement, recordkeeping arrangement or counterclaim other arrangement with respect thereto which are to be transferred to, and assumed by the Buyers, in accordance with Section 5.12 (the “Transferred Benefit Plans”); provided, however, that it is understood and agreed between the Parties that the Transferred Benefit Plans will remain with, and will be the responsibility of, the Sellers from and after the Closing until the Transfer Date, at which time the Transferred Benefit Plans shall be transferred to the extent Buyers and will be assumed by the Buyers; 2 (xv) all Permits, including all Permits set forth in Section 4.18 of the Disclosure Schedule (the “Transferred Permits”); (xvi) all goodwill of the Business as a going concern; (xvii) all originals, or where not available, copies, of all books and records, including books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority or Educational Agency), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Assumed LiabilitiesTransferred Intellectual Property (collectively, in each case including all proceeds, monies “Books and recoveries therefrom received after the Effective Time, Records”); and (exviii) all books and records of such Asset Seller to the extent relating to the Business ((a) – (e) collectivelyother properties, the “Purchased Assets”), including those items set forth on Section 1.2 of the Company Disclosure Schedule. Purchaser shall not purchase, and the Purchased Assets shall not include, any assets, rights or properties of the Asset Sellers other than those set forth in subsections (a) – (e) above (all such assets, rights and properties interests of any kind, whether tangible or intangible, real or personal, of a type not being purchased, described in the “foregoing clauses (i)-(xvii) that are owned by the Sellers or in which the Sellers have an interest and which are not Excluded Assets”).
Appears in 1 contract
Sources: Asset Purchase Agreement