Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following: (i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation; (ii) any and all Accounts Receivable; (iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates; (iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv); (v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property; (vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi); (vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder; (viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees; (ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix); (x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller; (xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period; (xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii); (xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi); (xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and (xv) any real property or interest in real property other than the Transferred Real Property.
Appears in 4 contracts
Sources: Triage Purchase Agreement (Alere Inc.), Triage Purchase Agreement (Quidel Corp /De/), Purchase Agreement (Alere Inc.)
Excluded Assets. (a) Notwithstanding anything any provision in Section 2.01(athis Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) to the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and or interest in or to any assets, properties or rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for other than the Purchased Assets (the “Excluded Assets”), including the followingincluding:
(i) all cash and Cash Equivalentsassets constituting ownership interests in, including any cash or Cash Equivalents residing that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in any collateral account securing any obligation or contingent obligationclauses (a) through (s) of Section 2.1;
(ii) any and all Accounts ReceivableRetained Real Property;
(iii) (A) the Retained Facilities, (A) any Contracts owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliatesforegoing clauses (B) through (D);
(iv) except to the extent included all legal and beneficial interest in the Purchased Assets under Section 2.01(a)(v) share capital or Section 2.01(a)(xviiiequity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset other than those equity interests set forth on Section 2.1(q) of the Seller Entity, including Contracts described on Schedule 2.01(b)(iv)Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property other than (A) the Transferred that is not Business IP, including such Intellectual PropertyProperty licensed to Purchaser under an Ancillary Agreement or otherwise, and (Bincluding as set forth on Section 2.3(a)(vii) of the Additional Assigned Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viviii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the machineryBusiness;
(ix) all customer and vendor lists, equipmentall advertising, mechanical marketing, sales and spare partspromotional materials, suppliesand business and financial records, toolsbooks, toolingand documents and other Records, jigsin each case not Related to the Business, moldsand the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, dieschecks, production suppliesmoney orders, samplesmarketable securities, media short-term instruments, bank and fixtures described on Schedule 2.01(b)(viother depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(viixi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance Contracts policies and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunderrecoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(viiixvi) all owned or leased desktop computersexcept as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Group Plan or any similar benefit plan, program or arrangement Foreign Seller Group Plan that is maintained or contributed to by any Seller or Affiliate of Sellernot a Conveyed Subsidiary Plan;
(xixvii) subject all corporate-level services (but not the assets related to such services to the provisions extent such assets are Purchased Assets) of Article VIIIthe type currently provided to the Business by Seller Parent or any of its Affiliates, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Periodand without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xiixviii) the Registrations used all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in the manufacturing of the Products set forth on Schedule 2.01(b)(xii)Section 2.1;
(xiiixix) all claimsassets, counterclaims, causes of action, choses in action, rights of recovery, properties and rights of set-off of any kind (Person that are not Related to the Business, including all damages assets, properties and payments rights constituting ownership interests in, or that are used or held for pastuse in, present or future infringement or misappropriation of Intellectual Propertyrelated to, the right to use and recover for past infringements or misappropriations of Intellectual PropertyRetained Businesses, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines each case other than those described in Section 2.01(a)(xx)assets, including the remaining portion of any cell line of which an aliquot thereof is included in the properties or rights identified as Purchased Assets pursuant to in clauses (a) through (s) of Section 2.01(a)(xx)2.1; and
(xvxx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any real property material adverse impact to the Purchased Assets or interest in real property the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other than Party to effect the Transferred Real Propertyprovisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 4 contracts
Sources: Stock and Asset Purchase Agreement (Haleon PLC), Stock and Asset Purchase Agreement (Haleon PLC), Stock and Asset Purchase Agreement (Glaxosmithkline PLC)
Excluded Assets. Notwithstanding anything in Section 2.01(aThe Company and its Subsidiaries are not selling, conveying, assigning, transferring or delivering to Purchaser, and the term “Purchased Assets” shall not include, the following assets (collectively, the “Excluded Assets”):
(a) to trade accounts receivable, customer purchase orders, notes receivable, negotiable instruments and chattel paper not arising from the contrarySTB Business, no Designated Purchaser shall purchase or otherwise acquire the NXP Note and any Excluded Royalties;
(b) All (i) existing products and products under development of the Company’s DTV Business, PC TV Business, Audio Business and the Terrestrial Demod Product Business and (ii) all masks for such products;
(c) the Company’s and each Subsidiary’s right, title and interest in, to or under (i) each Contract for Licensed Intellectual Property Assets that are not used in the STB Business, (ii) each Contract listed on Schedule 1.2(c) (the Contracts in (i) and (ii) collectively, the “Excluded Licensed Intellectual Property Assets”) and (iii) each Retained Contract;
(d) all commercial off-the-shelf Software loaded on desktop or laptop computers that are not part of the Tangible Personal Property;
(e) all of the Company’s and each Subsidiary’s cash and cash equivalents except for (i) any cash and cash equivalents included in the Working Capital Statement, if any, or taken into account in calculating the Final Working Capital, and (ii) the Required Cash;
(f) claims (and benefits arising therefrom) that relate to any assetsLiability other than the Assumed Liabilities;
(g) the Company’s and each Seller Subsidiary’s financial accounting books and records, corporate charter, minute and stock record books, income tax returns, corporate seal, checkbooks and canceled checks;
(h) all rights (including any claims, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except and interest in and to any refunds for Taxes with respect to the Purchased Assets (and STB Business for Pre-Closing Tax Periods) relating to the “Excluded Assets”), including the following:Retained Liabilities;
(i) all cash except as provided in Section 7.11, the names and Cash Equivalentstrademarks “Trident Microsystems, Inc.”, any other use of “Trident Microsystems” together with any other word or phrase, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationthe Trident Microsystems logo;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(vj) all Intellectual Property other than (A) preference or avoidance claims and actions of the Transferred Intellectual PropertyCompany arising under Sections 544, 547, 548, 549 and (B) 550 of the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates Bankruptcy Code other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Preference Avoidance Claims; and
(xvk) any real property or interest in real property other than all rights of the Transferred Real PropertyCompany under this Agreement.
Appears in 4 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Entropic Communications Inc), Asset Purchase Agreement (Entropic Communications Inc)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the The Purchased Assets shall not include any of the following property and assets (collectively, the “Excluded Assets”):
(a) all book debts and other debts due or accruing due to Seller prior to the Closing Time and the benefit of all security for such accounts, notes and debts, other than Accounts Receivable;
(b) receivables owing to the Seller or a Subsidiary (other than CCSC) relating to the Real Time Transaction;
(c) all cash on hand, cash equivalents, and bank deposits of the Seller or a Subsidiary (other than CCSC);
(d) all Short Term Investments of the Seller or a Subsidiary (other than CCSC);
(e) all minute books and stock ledgers of the Seller or a Subsidiary (other than CCSC);
(f) all Indebtedness to the Seller of any Affiliate or Subsidiary of the Seller;
(g) all personnel records that the Seller or a Subsidiary is required by Applicable Law to retain in its possession;
(h) all sponsorship obligations of the Seller under Employee Plans, including the following:Pension Plans, and Statutory Plans;
(i) all cash income Tax installments paid by the Seller or a Subsidiary and Cash Equivalents, including the right to receive any cash refund of income Taxes paid by the Seller or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationa Subsidiary;
(iij) any Georgia State research and all Accounts Receivabledevelopment tax credits receivables;
(iiik) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller Georgia State research and its Affiliatesdevelopment deferred income;
(ivl) except to all equity or other ownership interests in Subsidiaries of the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)other than CCSC;
(v) all Intellectual Property other than (Am) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviiiSchedule 2.2(m) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx“Excluded Contracts”); and
(xvn) any real property or interest the leases described in real property other than Schedule 2.2(n) (the Transferred Real Property“Excluded Leases”).
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Vecima Networks Inc.), Asset Purchase Agreement (Concurrent Computer Corp/De)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary contained herein, no Designated Purchaser shall purchase expressly excluded from the Assets are all of the right, title and interest of the Seller Group in and to the following (collectively, the “Excluded Assets”):
(a) All corporate and Tax records of the Seller Group and any foreign subsidiaries of the Seller Group, including corporate charters, corporate minute and stock books and records, and other documents and instruments relating solely to the organization, maintenance and existence of the Seller Group or otherwise acquire such foreign subsidiaries or the Taxes of the Seller Group or such foreign subsidiaries;
(b) All claims (including any litigation or arbitration claims and any refunds and deposits), rights, rights of offset or causes of action that the Seller Group or their Affiliates may have against or from any Person relating to any of the Excluded Assets or the Excluded Liabilities;
(c) All refunds, pre-payments, net operating losses and claims relating to federal, state or municipal income Taxes of the Seller Group or their Affiliates for any period, or portion of any period, ending on or prior to the Closing Date;
(d) The capital stock of the Seller Group and each of their subsidiaries and all equity securities owned or held by any Seller Group or any of their subsidiaries, other than the Seller Group’s right, title and interest in and to the Kobo Interest, subject to Section 2.9;
(e) All causes of action and claims that may be asserted against the Buyer and all rights of the Sellers under this Agreement or any Ancillary Agreement or any other agreements or instruments otherwise delivered in connection with this Agreement or any Ancillary Agreement;
(f) All of the interest of the Seller Group in and to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for all Real Property Leases other than the Purchased Assets Assumed Real Property Leases (the “Excluded AssetsReal Property Leases”), including ;
(g) All of the following:interest of the Seller Group in and to all Contracts other than the Assumed Contracts (the “Excluded Contracts”);
(h) All Equipment and leasehold improvements in the Store Closing Locations;
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationAll Excluded Licenses;
(iij) any and all Accounts ReceivableAll Inventory located at the Store Closing Locations;
(iiik) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its AffiliatesAll Excluded Deposits;
(ivl) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, All confidential personnel and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights medical records of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the who do not become Transferred Employees;
(ixm) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) All assets, properties or Section 2.01(a)(xix)rights relating to any Employee Plan of the Seller Group;
(xn) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of SellerAll Avoidance Actions;
(xio) subject All assets and other rights relating to the Business sold or otherwise transferred or disposed of during the period from the date of this Agreement through and including the Closing Date, in any event in accordance with the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;this Agreement; and
(xiip) the Registrations used in the manufacturing All of the Products other assets, rights and properties set forth on Schedule 2.01(b)(xii1.3(p);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Borders Group Inc), Asset Purchase Agreement, Asset Purchase Agreement
Excluded Assets. Notwithstanding anything Section 1.2 or any other provision hereof, the Acquired Assets will not in any event include any of the following assets, properties, or rights of any Asset Seller (collectively, the “Excluded Assets”):
(a) all books and records not constituting an Acquired Asset described in Section 2.01(a1.2(h), including each Asset Seller’s certificate of incorporation, bylaws and similar organizational documents, minutes, stock records and similar documents;
(b) to the contraryall cash, no Designated Purchaser shall purchase or otherwise acquire cash equivalents (including marketable securities and short-term investments), bank accounts, lockboxes and deposits of, and any right, title and interest in or to any assets, rights or properties interests in, the cash management system of any Asset Sellers, including uncleared checks and drafts received or deposited for the account of the Asset Sellers;
(c) all Retained Accounts Receivable;
(d) all rights to and the use of the “Newell”, “▇▇▇▇▇▇▇ Brands”, “Rubbermaid” or “DYMO” trade names and trademarks, any derivation or combination thereof and all associated goodwill, and any other Intellectual Property not specifically described in Section 1.2(e);
(e) all Contracts between any Asset Seller, on the one hand, and any Affiliate of such Asset Seller, on the other hand, and all intercompany receivables owed to any Asset Seller by any Affiliate of such Asset Seller;
(f) all rights under any Contracts other than the Business Contracts;
(g) all assets primarily used or their respective Affiliatesheld for primary use in connection with the performance of the centralized management functions provided to Purchaser and its Affiliates by Parent and its Affiliates pursuant to the terms of the Transition Services Agreement;
(h) all rights to and in Employee Benefit Plans and any trusts, regardless insurance arrangements or other assets held pursuant to, or set aside to fund the obligations of kindan Asset Seller under, description or location or whether tangible or intangibleany such Employee Benefit Plans, real, personal or mixed, except for other than the Purchased Assets (the “Excluded Assumed Benefit Plan Assets”), including the following:;
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts policies and all rights of any every nature with respect thereto, including all and description under or arising out of such insurance proceeds received or receivable thereunderpolicies;
(viiij) all owned claims for and rights to any deferred Tax asset or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject receive Tax refunds relating to the provisions operation or ownership of Article VIII, any right to any refund the Business or credit with respect to Taxes relating to the Acquired Assets for any Pre-Closing Tax Period, including any refunds or rebates of anti-dumping, countervailing or other customs duties, tariffs or charges relating to the operation of the Business or ownership of the Acquired Assets prior to Closing;
(xiik) except to the Registrations extent set forth in Section 4.9(d) of the Seller Disclosure Letter, all application systems and software, including all computer software, programs and source disks, and related program documentation, tapes, manuals, forms, guides and other materials, computer hardware and other systems hardware and networking and communications assets, including servers, databases, backups and peripherals, in each case used in the manufacturing of Business;
(l) all uniform product codes other than the Products set forth on Schedule 2.01(b)(xiiAcquired UPCs;
(m) all rights under this Agreement, the Ancillary Agreements, the other agreements and instruments executed and delivered in connection with this Agreement, and the transactions contemplated hereby or thereby;
(n) all inventory that is not Inventory as described in Section 1.2(a);
(xiiio) all claimsmachinery, counterclaimsequipment, causes of actionfurniture, choses in actionfurnishings, rights of recoveryfixtures, tools and rights of set-off of any kind other tangible personal property listed on Exhibit 1.3(o) (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi“Excluded Equipment”);
(xivp) all cells lines assets primarily related to the development, manufacture, distribution and sale of handheld label makers, label printers and other products, as conducted by Parent and certain of its Subsidiaries under the name DYMO® (the “DYMO Business”);
(q) all rights arising out of or relating to the action set forth on Exhibit 1.4(h);
(r) any claims of the Asset Sellers or their Affiliates (other than those described in Section 2.01(a)(xx), including the remaining portion of a Purchased Company) related to any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Excluded Asset; and
(xvs) any real property or interest in real property other than the Transferred Real Propertyassets, properties and rights set forth on Exhibit 1.3(s).
Appears in 3 contracts
Sources: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Stanley Black & Decker, Inc.), Stock and Asset Purchase Agreement (Newell Brands Inc)
Excluded Assets. Notwithstanding anything The Business Assets shall not include any of the following assets owned by Trimble or any of its controlled Affiliates (such assets, collectively, the “Excluded Assets”):
(i) the equity interests of (A) each Subsidiary of Trimble (or any other entity) other than the Company and the Transferred Subsidiaries and (B) the entities set forth on Schedule 2.2(b)(i);
(ii) all Cash of the Business (except as the same are held by the Company or any of its Subsidiaries at the Closing);
(iii) all accounts receivable of the Business as of the Closing other than accounts receivable of the Transferred Subsidiaries specified on Schedule 2.2(a)(iv) as of the Closing;
(iv) all inventory, finished goods, raw materials, work in Section 2.01(aprogress, packaging, supplies, parts and other inventories not owned by the Transferred Subsidiaries specified on Schedule 2.2(a)(iv) as of the Closing;
(v) all data including Personal Data, files, documents, and records in any form or media (whether print, digital or electronic) of Trimble and its controlled Affiliates, other than the Transferred Data;
(vi) all Intellectual Property Rights owned by Trimble and its controlled Affiliates, other than the Transferred IP, including (x) Marks to the contraryextent containing confusingly similar to the name “Trimble”, no Designated Purchaser shall purchase and (y) any such Intellectual Property Rights to the extent related to (A) Excluded Core Positioning Technology or otherwise acquire (B) Correction Services;
(vii) the following Contracts (collectively, the “Excluded Contracts”): (A) the Contracts set forth on Schedule 2.2(b)(vii) hereto; (B) all Business Inbound Licenses that are Patent cross-licenses set forth on Schedule 2.2(b)(vii) hereto; and (C) all settlement agreements to the extent relating to claims directed at products and services that are not in the Business;
(viii) all personnel, employee compensation, medical and benefits and labor relations records relating to the Business Employees who are not Transferred Employees; provided, however, that copies (or, where required by applicable Law, originals) of any right, title and interest in or such records relating to any assetsTransferred Employee will be delivered to the Company unless disclosure of such records would be prohibited by applicable data privacy or data protection Laws or if the written consent of the employee is otherwise required, rights then subject to such consent; provided, further, however, that where Trimble has delivered originals of such records, the Company or properties a Company Employer will deliver copies of such records to Trimble upon ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except ▇’▇ written request to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used allowed by employees of Seller or its Affiliates other than the Transferred Employeesapplicable Law;
(ix) all other Information Technology Assets assets relating to any Employee Plan (other than those described in Section 2.01(a)(xviii) any Transferred Employing Subsidiary Plan or Section 2.01(a)(xixany Employee Plan that is required to transfer to the Company Group by operation of applicable Law);
(x) all assets assets, properties, equity interests and business, of any Seller Plan or any similar benefit planevery kind and description, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Sellerlocated in the Russian Federation;
(xi) subject to the provisions of Article VIIIassets, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Periodrights and properties as described in Schedule 2.2(b)(xi);
(xii) all past, current or future rights to bring an Action in law or in equity against third parties, including unliquidated rights under manufacturers’ and vendors’ warranties (and the Registrations used right to receive all monies, proceeds, settlements and recoveries in connection therewith) to the manufacturing extent not Related to the Business or the Business Assets, and all rights and remedies under all settlement agreements, releases and similar Contracts resolving claims (A) to the extent involving Employees, other than the Transferred Employees or the Business Employees, other than as prohibited by applicable Law or the terms of such settlement agreements, releases or similar Contracts or (B) to the Products set forth on Schedule 2.01(b)(xii)extent not Related to the products or services Related to the Business;
(xiii) all claimsExcluded French Assets until and unless the relevant Consultation Finalizations have occurred and Trimble has effected a French Put Option Exercise, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world accordance with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi7.16(a);; and
(xiv) all cells lines other than those described in Section 2.01(a)(xx)assets, including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Propertyrights and properties that are not Business Assets.
Appears in 3 contracts
Sources: Sale and Contribution Agreement (Trimble Inc.), Sale and Contribution Agreement (Agco Corp /De), Sale and Contribution Agreement (Agco Corp /De)
Excluded Assets. Notwithstanding anything in Section 2.01(a) Subject to the contraryterms of this Agreement, no Designated the Acquired Assets shall not include any assets, properties, rights or interests whether or not relating to the Product, other than those specifically listed or described in Sections 2.1 and 2.6 and, without limiting the generality of the foregoing, shall expressly exclude the following assets of Reliant (collectively, the “Excluded Assets”):
(a) all rights of Reliant arising under this Agreement, the Other Agreements or from the consummation of the transaction contemplated hereby or thereby;
(b) all rights of enforcement, indemnification and similar matters under the Assigned Contracts and Orders related to any periods prior to Closing; provided, however, that Reliant shall (i) consult with the Purchaser shall purchase prior to exercising any such rights and (ii) exercise such rights in a manner intended to minimize any adverse impact to the Purchaser’s relationship with any customers and suppliers party to the Assigned Contracts and Orders post-closing;
(c) all rights, title and interest of Reliant in and to any Intellectual Property, whether now existing or hereafter developed or acquired (including the Reliant Brands) other than the Product Intellectual Property;
(d) all rights, title and interest of Reliant in and to the Nizatidine Supply Agreement except as otherwise acquire any rightassigned to Purchaser pursuant to the Nizatidine Supply Agreement Assignment;
(e) all rights, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the divisionProduct outside of the Territory, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to other than the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which license rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(ivPurchaser in Section 2.6(a)(ii);
(vf) all Intellectual Property other than rights, title and interest of Reliant in and to Axid IR NDA and the IND (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions Purchaser’s right of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets reference under Section 2.01(a)(xvi2.6(g);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xvg) all accounts receivable (including any real property payments received with respect thereto on or after the Closing, unpaid interest in real property other than accrued on any such accounts receivable and any security or collateral related thereto) arising from sales of the Transferred Real PropertyProduct prior to the Closing and that are accrued but unpaid on or prior to the Closing Date (collectively, the “Accounts Receivable”).
Appears in 3 contracts
Sources: Asset Purchase Agreement (Reliant Pharmaceuticals, Inc.), Asset Purchase Agreement (Reliant Pharmaceuticals, Inc.), Asset Purchase Agreement (Reliant Pharmaceuticals, Inc.)
Excluded Assets. Notwithstanding Buyer expressly understands and agrees that, notwithstanding anything to the contrary set forth in Section 2.01(a) to 2.02, all of the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any following assets, properties and rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”) of Seller and its Retained Subsidiaries (and the Acquired Entities to the extent such assets, properties or rights would have been an Excluded Asset if held by Seller or one of its Retained Subsidiaries) shall be retained by, and remain the property of, Seller or a Retained Subsidiary, and shall be excluded from the Purchased Assets:
(a) (x) all contracts, agreements, licenses, commitments, sales and purchase orders and other instruments (other than the Assigned Contracts), including enterprise software agreements, and (y) all Transportation Contracts;
(b) all interests in the following:capital stock of, or any other equity interests in, Seller or any Retained Subsidiary (or securities convertible, exchangeable or exercisable therefor);
(c) all Cash (other than any Cash of the Acquired Entities);
(d) all real property (including leases thereof), and all buildings, furniture, fixtures and improvements erected thereon, equipment (including machinery) and other tangible personal property (other than as provided by Section 2.02(e) or Section 2.02(f));
(e) all insurance policies, historical and in-force;
(f) except for the Transferred Intellectual Property, Intellectual Property owned by an Acquired Entity and any Intellectual Property licensed pursuant to an Assigned Contract, all other Intellectual Property owned by or licensed to Seller or any of its Affiliates or with respect to which Seller or any of its Affiliates otherwise has any right, title, or interest, including all Seller Names and Marks;
(g) except for the Transferred IT Assets, all other IT Assets;
(h) all rights of Seller or any of the Retained Subsidiaries arising under the Transaction Documents or the transactions contemplated hereby or thereby;
(i) all cash (i) books, records, files and Cash Equivalentspapers (whether electronic or otherwise) prepared or received by or on behalf of Seller or any of its Affiliates in connection with the sale of the Business and the transactions contemplated hereby, including all analyses relating to the Business, Seller or any cash prospective purchaser of the Business or Cash Equivalents residing in any collateral account securing of their Affiliates so prepared or received, (ii) confidentiality agreements with prospective purchasers of the Business or any obligation or contingent obligationportion thereof (except that Seller shall, to the extent it is able, assign to Buyer at the Closing all of Seller’s rights under such agreements to confidential treatment and limited use of information with respect to the Business and with respect to solicitation and hiring of Continuing Employees) and all bids and expressions of interest received from third parties with respect thereto and (iii) all privileged materials, attorney work product, documents and records to the extent not related to the Business;
(iij) any and all Accounts Receivableaccounting goodwill related to the Business;
(iiik) any Contracts used in the Triage Business that relate all Seller Tax Records, Tax Assets, rights to the divisionTax refunds, corporate office, overhead or back-office functions of Seller and its Affiliatestax credits;
(ivl) except to the extent included tariff exclusions-related receivable referenced in Seller’s management accounts as line item “Non-trade receivables #1155” (the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv“Tariff Receivable”);
(vm) all Intellectual Property other than (A) any asset or class of assets excluded from Purchased Assets by virtue of the Transferred Intellectual Property, and (B) limitations expressed in the Additional Assigned Intellectual Propertydefinition thereof;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(viin) all current assets used for purposes of providing the services, rights and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those support described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)7.10; and
(xvo) any real property or interest the other assets, properties and rights (including contracts) listed in real property other than Section 2.03(o) of the Transferred Real PropertyDisclosure Schedule; and
(p) all insurance claims to the extent not relating to the Business.
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (SB/RH Holdings, LLC), Asset and Stock Purchase Agreement (SB/RH Holdings, LLC)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary in this Agreement, no Designated Seller shall retain and not transfer, and Purchaser shall not purchase or otherwise acquire acquire, any right, title and interest in or to any of the following assets, properties or rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliatesits Subsidiaries (collectively, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:):
(ia) all cash assets, properties and Cash Equivalentsrights of any kind (other than the Intellectual Property Assets) not primarily used in or for the Acquired Products;
(b) Seller’s TCAM1, TurboCAM and Toy CAM products, including any cash asset, property or Cash Equivalents residing in right of any collateral account securing any obligation or contingent obligation;
kind related thereto (ii) any other than the intellectual property rights and all Accounts Receivable;
(iii) any Contracts used assets acquired by Purchaser in the Triage Business that relate 2006 Agreement), which consist of parts having densities of no more than 4.5 megabits and sold, directly or indirectly, only to Seller’s sole existing customer for such products as of the date of this Agreement, including, without limitation, all related inventory, work-in-process, masks and finished goods, tools, equipment, and finished goods, supplies, parts and other tangible personal property related primarily to the divisionforegoing (collectively, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv“2007 Retained Products”);
(vc) all Intellectual Property other than (A) the Transferred Intellectual Property, proprietary information and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all intellectual property rights of any nature with respect thereto, including all insurance proceeds received that are not exclusively or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates in the Acquired Products (other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all intellectual property rights and assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to acquired by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used Purchaser in the manufacturing of 2006 Agreement and that certain Cross-License Agreement, dated February 15, 2006, by and between Seller and NetLogic US (the Products set forth on Schedule 2.01(b)(xii“2006 Cross-License”);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xvd) all manufacturing machines, automatic test equipment and other equipment and machinery, including equipment and machinery for manufacturing, sorting, testing, packaging and quality assurance (except as identified in Section 2.1(d)) and all manufacturing and process-related intellectual property, in each case, whether or not used in connection with the Acquired Products, the 2007 Retained Products or otherwise.
(e) all uncollected trade accounts receivable and miscellaneous receivables from the sale or other disposition of any real Acquired Products or Inventory and the license or other disposition of any intellectual property related to the Acquired Assets, whether billed or interest in real property other than the Transferred Real Propertyunbilled.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Netlogic Microsystems Inc), Purchase and Sale Agreement (Cypress Semiconductor Corp /De/)
Excluded Assets. Notwithstanding anything in Section 2.01(aIt is expressly understood and agreed that the Assets shall not include the following (each, an "EXCLUDED ASSET"):
(a) Except to the contraryextent expressly transferred pursuant to the provisions of Sections 1.2(a) through (l), no Designated Purchaser shall purchase inclusive, all assets, rights, properties, claims, contracts and business of any Asset Seller that, after giving effect to the services to be provided to, and other rights of, Buyer under the Buyer License Agreement and the Transition Agreements, are not necessary to conduct the Analytical Instruments Business as currently conducted;
(b) The capital stock of all direct or otherwise acquire indirect subsidiaries and affiliates of Seller other than the Transferred Subsidiaries;
(c) Cash and cash equivalents or similar type investments, bank accounts, certificates of deposit, Treasury bills and other marketable securities of the Asset Sellers;
(d) All real property and leasehold interests in real property of the Asset Sellers other than the Plants and the Equipment;
(e) Any refunds or credits with respect to any Taxes paid or incurred by the Asset Sellers (plus any related interest received from the relevant taxing authority);
(f) Each Asset Seller's right, title and interest in and to the contracts listed on Section 1.2(g)(i) of the Seller Schedule;
(g) Any Intellectual Property of the Asset Sellers (other than the Intellectual Property expressly set forth, summarized and/or described in Section 1.2(a) hereof or to any assets, rights or properties expressly described in Section 1.2(a) of ▇▇▇▇▇▇, the Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets Schedule);
(the “Excluded Assets”)h) The real property, including all buildings, structures and other improvements situated thereon, and other assets listed in Section 1.3(h) of the following:Seller Schedule;
(i) all cash and Cash EquivalentsOther than claims under insurance policies in respect of Assets that are lost, including any cash damaged or Cash Equivalents residing destroyed or Assumed Liabilities that are incurred, in any collateral account securing any obligation whole or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate part, prior to the divisionClosing, corporate officeall right, overhead or back-office functions title and interest of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) in any insurance policies relating to the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts Analytical Instruments Business and all rights of any nature Asset Seller to insurance claims and proceeds with respect thereto, including all insurance proceeds received to or receivable thereunderrelating to (i) occurrences prior to the Closing with respect to the operation of the Analytical Instruments Business and (ii) the Excluded Assets and Excluded Liabilities;
(viiij) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Any foreign currency agreements to which any Asset Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)a party; and
(xvk) All rights with respect to intercompany receivables, notes or loans between any real property or interest in real property other than of the Transferred Real PropertySubsidiaries, on the one hand, and Seller and its other subsidiaries (excluding Transferred Subsidiaries), on the other hand, except as listed in Section 1.3(k) of the Seller Schedule and except for trade payables or receivables relating to the provision of goods and services to or by the Analytical Instruments Business in the ordinary course of business of the Analytical Instruments Business consistent with past practice and custom ("ORDINARY COURSE OF BUSINESS").
Appears in 2 contracts
Sources: Purchase Agreement (Eg&g Inc), Purchase Agreement (Eg&g Inc)
Excluded Assets. Notwithstanding anything in Section 2.01(a) this Agreement to the contrary, no Designated Purchaser from and after the Closing, the Seller’s Group shall purchase or otherwise acquire any retain all of its right, title and interest in and to, and there shall be excluded from the direct or indirect sale, conveyance, assignment or transfer to any the Purchaser or its Affiliates pursuant to Section 2.01(b), and the Transferred Assets shall not include, the following assets, rights or and properties of ▇▇▇▇▇▇the Seller’s Group (other than, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”subject to Section 2.01(d), including the following:Transferred Subsidiaries):
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing those assets set forth in any collateral account securing any obligation or contingent obligationAnnex 2.01(c)(i);
(ii) any and all Accounts Receivable(A) Intellectual Property Rights not Exclusively Related to the Business or (B) any Contract relating to Intellectual Property Rights that is not a Transferred Intellectual Property Contract;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its AffiliatesRetained Marks;
(iv) except to any product, and any permits, licenses, certificates, registrations, marketing or other authorizations or consents issued by any Governmental Entity in any jurisdiction in respect of any product, or any applications therefore, other than the extent included in the Purchased Assets Products, Product Approvals, Products Under Registration and Marketing Authorizations transferrable under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)Applicable Law;
(v) all Intellectual Property other than (A) the Transferred Intellectual Propertycash, marketable securities and (B) the Additional Assigned Intellectual Propertynegotiable instruments;
(vi) all real property and any leases therefor and interests therein, together with all buildings, fixtures, and improvements erected thereon, other than the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)Transferred Real Property;
(vii) all current the company seal, minute books, charter documents, stock or equity record books and prior insurance Contracts such other books and all rights of records pertaining to the Seller or its Affiliates (other than the Transferred Subsidiaries), as well as any nature with respect thereto, including all insurance proceeds received other records or receivable thereundermaterial relating to the Seller or its Affiliates (other than the Transferred Subsidiaries) generally and not involving or related to the Transferred Assets or the Business;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees any right of the Seller or its Affiliates other than the Transferred Employeesto be indemnified in respect of Excluded Liabilities or any Excluded Asset;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xixTax assets (including Tax refunds and prepayments);
(x) all assets Tax Returns of any Seller Plan or any similar benefit planthe Seller’s Group and all books and records (including working papers) related thereto, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Sellerexcept as set forth in Section 2.01(b)(xvi);
(xi) subject to any intercompany receivables of the provisions of Article VIIIBusiness, any right to any refund or credit with respect to Taxes relating to any Preother than Intra-Closing Tax PeriodGroup Trading Balances;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii)all Seller’s Group Insurance Policies and rights to proceeds thereunder;
(xiii) all claimsartwork, counterclaimspaintings, causes drawings, sculptures, prints, lithographs, photographs and other artistic works of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi)Seller’s Group;
(xiv) except as set forth in Section 6.08 and Annexes 6.08(k) and 6.08(l), all cells lines rights in connection with any assets of any Benefit Plan other than any Transferred Subsidiary Benefit Plan;
(xv) any equity interest held by the Seller’s Group in any Person other than a Transferred Subsidiary;
(xvi) the Excluded Contracts;
(xvii) all rights of the Seller’s Group under this Agreement and the Ancillary Agreements;
(xviii) those described assets, rights and properties that are to be used by, or necessary for, the Seller’s Group or its designated third party to provide services to the Purchaser or its Affiliates under any of the Ancillary Agreements (other than assets, properties or rights that are Exclusively Related to the Business and required to be listed on a statement of net assets of the Animal Health Group in Section 2.01(a)(xx), including accordance with the remaining portion Statement of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xxNet Asset Rules); and
(xvxix) any real property or interest all assets, rights and properties that are not Exclusively Related to the Business. The assets, rights and properties referred to in real property other than this Section 2.01(c) and in Section 2.01(d), the Transferred Real PropertyExcluded Assets.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Novartis Ag), Stock and Asset Purchase Agreement (Lilly Eli & Co)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary contained herein, no Designated Purchaser shall purchase or otherwise acquire any and all of the Sellers’ right, title and interest in or and to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets following assets (the “Excluded Assets”)) shall be specifically excluded from, including and shall not constitute, the followingPurchased Assets:
(ia) All Seller Benefit Plans and any and all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationassets related to such Seller Benefit Plans;
(iib) any Any and all Accounts ReceivableContracts other than the Assigned Contracts;
(iiic) any Contracts used All owned and leased real property and other interests in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliatesreal property;
(ivd) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) Any and all Intellectual Property other than the Purchased IP, including all Trademarks used in connection with the Business as of Closing (Athe “Excluded Trademarks”) the Transferred and all Intellectual Property, and (B) the Additional Assigned Intellectual PropertyProperty related exclusively to Existing DH-I;
(vie) Copies of the machineryPurchased Documentation and other information, equipmentmaterials and data related exclusively to Existing DH-I;
(f) Any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not relating to the Business, mechanical for all periods before, through and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media after the Closing;
(g) Any and fixtures all non-transferrable Business Permits and Business Permits set forth or described on in Schedule 2.01(b)(vi2.5(g);
(viih) all current All assets, rights and prior insurance Contracts properties set forth or described in Schedule 2.5(h); and
(i) All refunds, credits, rights to refunds, adjustment or similar benefit (including interest thereon) and all rights any other Tax assets of the Sellers or any nature with respect theretoof their Affiliates, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right such item relating to any refund Purchased Asset or credit with respect to Taxes relating to Assumed Liability for any Pre-Closing Tax Period;
Period but excluding any such item relating to Transfer Taxes allocated to Purchaser under Section 6.2 or Property Taxes specifically allocated to Purchaser under Section 6.3; and, subject to the Sellers’ obligations under Section 6.1, all Tax Returns, books and records (xiiincluding work papers related thereto) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claimsSellers or any of their Affiliates. The Parties acknowledge and agree that neither Purchaser nor any of its Affiliates will acquire or be permitted to retain any direct or indirect right, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property title or interest in real property other than the Transferred Real Propertyany Excluded Assets.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Thoratec Corp)
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.01(a) to the contrary2.1 or elsewhere in this Agreement, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for all Assets other than the Purchased Assets, including the following Assets (collectively, the “Excluded Assets”), including shall not be part of the followingsale and purchase contemplated hereunder and shall remain the property of Seller after the Closing:
(ia) all cash All minute books and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate seals of Seller;
(xib) subject to the provisions The capital stock or other equity securities of Article VIIISeller, any right to any refund whether held in treasury or credit with respect to Taxes relating to any Pre-Closing Tax Periodotherwise;
(xiic) The consideration paid to Seller pursuant to this Agreement;
(i) Originals of all personnel records and (ii) originals of all other records that Seller is required by Law to retain in its possession;
(e) All Contracts not expressly assigned to and assumed by Purchaser pursuant to Section 2.1(e) (the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii“Excluded Contracts”);
(xiiif) all claimsAll structures, counterclaimsmachinery, causes of actionequipment, choses in actiontools, rights of recoveryfurniture, fixtures and rights of set-off of any kind equipment (including all damages fixed machinery and payments for pastfixed equipment), present computer hardware, supplies, materials, leasehold improvements, automobiles, computing and telecommunications equipment and other items of tangible personal property, of every kind owned or future infringement or misappropriation of Intellectual Property, the right to use leased wherever located and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) whether or not otherwise included carried on Seller’s books other than as set forth in Purchased Assets under Section 2.01(a)(xvi2.1(c) (the “Excluded Tangible Property”);
(xivg) all cells lines other than those described in Section 2.01(a)(xx)All Benefit Plans and any assets of such Benefit Plans, including the remaining portion rights, title and interests of Seller and its Subsidiaries in any cell line (i) assets of which an aliquot thereof is included a defined benefit or defined contribution retirement plan and (ii) assets of a non-qualified deferred compensation plan;
(h) All human resources documents related to any Non-Transferring Employee;
(i) All Tax identification numbers, Tax Returns and Tax refunds;
(j) All Real Property Leases;
(k) All cash, cash equivalents on hand or in the Purchased Assets pursuant bank accounts and short term investments;
(l) All products that are not Business Products;
(m) The Reon and Vida Processors, other than any Acquired Proprietary Rights and any Acquired Technology related to Section 2.01(a)(xx)such products;
(n) All Inventory; and
(xvo) any real property All Proprietary Rights owned or interest in real property other than purported to be owned by Seller that are not Acquired Proprietary Rights (including the Transferred Real PropertySeller Licensed Proprietary Rights).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Integrated Device Technology Inc), Asset Purchase Agreement (Integrated Device Technology Inc)
Excluded Assets. Notwithstanding anything in Section 2.01(a) the Transaction Agreements to the contrary, no Designated any assets which are not Transferred Assets shall not be Transferred to Purchaser or any of the Purchasing Subsidiaries pursuant to this Agreement, and shall purchase or otherwise acquire any rightbe retained by Seller and the Selling Subsidiaries, title and interest in or to any assetsincluding the following (collectively, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”):
(a) any interests of Seller or any other Selling Company in, to or under any of its owned real property or any lease of real property or in, to or under any other interest in real property (except as provided in the Real Estate Agreements and the Transferred Subsidiary Leases);
(b) all Excluded A/R and all cash and cash equivalents;
(c) any interest of Seller or any other Selling Company in any contract entered into prior to the applicable Closing Date providing for the provision of Customer Care Services to Seller or any of its Subsidiaries;
(d) all interests in any Shared Customer Care Split Contracts (that are not Customer Care Split Interests), including Shared GPS Split Contracts (that are not GPS Split Interests) and Shared Other Contracts (subject to Section 5.01(e));
(e) all Intellectual Property Rights other than Intellectual Property Rights conveyed pursuant to the following:IP Agreements;
(f) all rights, claims, credits and causes of action of Seller or any of the other Selling Companies arising under or relating to any Transferred Asset to the extent they relate to periods prior to the applicable Closing Date (except to the extent they relate to any Assumed Liabilities);
(g) all files, documents, books and records of Seller or any other Selling Company, other than the Acquired Books and Records;
(h) all records prepared in connection with the Transfer of the Transferred Assets and Assumed Liabilities and the negotiation of the Transaction Agreements;
(i) all cash rights of Seller and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationits Subsidiaries under this Agreement and the other Transaction Agreements;
(iij) any equity interest or security in or of any Person, other than the Transferred Subsidiary Interests;
(k) except as otherwise specifically provided in the Employee Matters Agreement or in a Local Acquisition Agreement, all the assets of and all the assets relating to the Seller Benefit Plans and the Required Benefit Plans;
(l) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller EntityTax assets, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Propertyany Tax refunds, and (B) the Additional Assigned Intellectual Property;
(vi) the machinerycredits or claims, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described attributable in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating each case to any Pre-Closing Tax Period;
Period (xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) except to the extent related they relate to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xxAssumed Liabilities); and
(xvm) any real property or interest in real property other than all assets required by Seller and its Subsidiaries solely to provide the services to the Customer Care Business under the Transaction Agreements with respect to the Transferred Real PropertyAssets to be transferred in a Subsequent Closing, except to the extent that any such assets will be Transferred upon the expiration or termination of the applicable Transaction Agreement in accordance with the terms thereof. All intellectual property matters, including the Transfer or licensing of intellectual property constituting Transferred Assets and any representations and warranties relating thereto, are addressed exclusively in the IP Agreements (except for Article X to the extent it applies to matters addressed in the IP Agreements). Except as otherwise expressly provided in this Agreement or the other Transaction Agreements, neither Purchaser nor any Purchasing Subsidiary shall have any proprietary or other ownership interest or claim with respect to any assets relating to or underlying any Transferred Contract, including intellectual property.
Appears in 2 contracts
Sources: Master Asset Purchase Agreement, Master Asset Purchase Agreement (Synnex Corp)
Excluded Assets. Notwithstanding anything in the provisions of Section 2.01(a) 2.1 hereof, the following assets, properties and rights, to the contraryextent owned by or inuring to the benefit of any one or more Sellers (collectively, no Designated Purchaser shall the “Excluded Assets”) are expressly excluded from the purchase and sale contemplated hereby and from the definition of the term “Purchased Assets” hereunder, in each case whether or otherwise acquire not related to or used or held for use in connection with the Purchased Assets, the Freeport Facility or the Business:
(a) all Cash;
(b) all Accounts Receivable, other than the Accounts Receivable, if any, to be transferred by Goodyear Canada pursuant to Section 2.1(c) hereof, which will not constitute Excluded Assets, except for the portion thereof that constitute Excluded Assets under Section 6.16. hereof;
(c) all assets not owned by Sellers as of the Closing, including, without limitation, all raw materials held under consignment agreements or arrangements with third parties, all property owned by any rightthird party and leased or held by any Seller under any of the Assumed Leases or Assumed Contracts (including, title without limitation, the Nitrogen Storage Tank and all the equipment owned by TBC Corporation or Universal Cooperatives, Inc. or held under either of the Custom Label Contracts) in each case identified in Schedule 2.2(c) hereof;
(d) subject to the Trademark License Agreement, all of the Goodyear Names and Marks, including, without limitation, the Licensed Marks;
(e) all rights and obligations under any and all employee benefit plans of each Seller, including, without limitation, the Employee Benefit Plans, and all assets, records and vendor arrangements associated with any such plan, whether held by one or more Sellers, in trust or otherwise;
(f) all casualty, liability or other insurance policies owned by or obtained on behalf of any Seller and all claims or rights under any such insurance policies;
(g) any federal, state or local, or any foreign, claim, cause of action, right of recovery or refund with respect to any Tax including, without limitation, income Tax refunds, franchise Tax refunds, duty draw backs on export sales; sales and use Tax refunds; real property Tax refunds; and personal property Tax refunds (except in respect of any refunds of Taxes, in respect of and relating to periods following the Closing) and all other claims and rights in respect of the foregoing;
(h) other than the Owned Real Property, all owned real property, all leased real property and any other interest in real property along with all appurtenant rights, easements and privileges appertaining or relating thereto;
(i) (A) all of each Seller’s finished goods, work-in process inventories, raw materials, consumables and supplies that are not Inventories; and (B) any Inventories that constitute Excluded Assets under Section 2.1(a)(ii) hereof;
(j) all rights under the Contracts pertaining to the Purchased Assets or the Business listed on Schedule 2.2(j) or Schedule 6.15 hereto (collectively, the “Excluded Contracts”);
(k) subject to the Technology Agreement, all Intellectual Property, and all (i) inventions, whether or not patentable, whether or not reduced to practice or whether or not yet made the subject of a pending patent application or applications, (ii) ideas and conceptions of potentially patentable subject matter, including, without limitation, any assetspatent disclosures, whether or not reduced to practice and whether or not yet made the subject of a pending patent application or applications, (iii) national (including the United States) and multinational statutory invention registrations, patents, patent registrations and patent applications (including all reissues, divisions, continuations, continuations-in-part, extensions and reexaminations) and all rights therein provided by multinational treaties or conventions and all improvements to the inventions disclosed in each such registration, patent or application, (iv) copyrights (registered or otherwise) and registrations and applications for registration thereof, and all rights therein provided by multinational treaties or conventions, (v) moral rights (including, without limitation, rights of paternity and integrity), and waivers of such rights by others, (vi) trade secrets and confidential, technical or properties business information (including ideas, formulas, compositions, inventions, and conceptions of inventions whether patentable or unpatentable and whether or not reduced to practice), (vii) whether or not confidential, technology (including know-how and show-how), manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, copyrightable works, financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and information, (viii) copies and tangible embodiments of all the foregoing, in whatever form or medium and (ix) rights to obtain and rights to apply for patents, and to register trademarks and copyrights;
(l) except in respect of the Assumed Leases, all leases in respect of any computer hardware or equipment located at the Freeport Facility and listed on Schedule 2.2(l)(i), all computer hardware and leased equipment not located at the Freeport Facility, and, subject to the Software License Agreement, all computer software (located at or used on the computer equipment located at the Freeport Facility or otherwise), including, without limitation, source code, operating systems and specifications, applications and configurations, data, data bases, files, documentation and other materials related thereto, data and documentation, including, without limitation, those described on Schedule 2.2(l)(ii), and all licenses and sublicenses in respect of any such computer software, data and documentation as well as all Internet addresses, websites and URLs, including, without limitation, “w▇▇.▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets▇▇▇▇.▇▇▇”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(iim) any all prepaid expenses, advances and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate deposits of each Seller, whether or not related to the divisionBusiness, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with each Seller under or in respect theretothereof, including all insurance proceeds received in each case whether recorded or receivable unrecorded;
(n) the automobile leases listed in Schedule 2.2(n) hereto, and the automobiles leased thereunder;
(viiio) all owned or leased desktop computers, laptops, tablets, mobile phones inter-company receivables and similar assets primarily used by employees inter-company prepaid expenses of any Seller or its Affiliates other than any Affiliate, division or business sector or unit thereof, including the Transferred EmployeesBusiness;
(ixp) all other Information Technology Assets other than those described Contracts identified on Schedule 2.2(p)(ii) and all molds and all unique drums identified in Section 2.01(a)(xviiiSchedule 2.2(p)(iii) (each as defined in the Offtake Agreement), used or Section 2.01(a)(xix)held for use by any Seller in connection with, the manufacture, distribution or sale of the categories of tires listed in Schedule 2.2(p)(i) hereto;
(xq) all assets of the Books and Records (including all books of account and all supporting vouchers, invoices and other records and materials) of each Seller, (i) relating to any Taxes of such Seller Plan (subject to the rights of Purchaser under Section 6.9 hereof), (ii) constituting personnel records, (subject to the rights of Purchaser under Article VII) corporate records, articles of incorporation, by-laws, minute books, stock or any similar benefit planstock transfer records or other organizational documents or records of such Seller, program (iii) which such Seller is required by Law to retain in its possession or arrangement that is maintained (iv) which are subject to or contributed to protected by any Seller or Affiliate privilege from disclosure under applicable Law;
(r) all telephone, telecopy and e-mail addresses and listings of each Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiiis) all claims, counterclaims, causes of action, choses in action, rights of recovery, recovery and rights of set-to set off or compensation of any kind (including rights under and pursuant to all damages warranties, representations and payments for pastguarantees made by suppliers) against third parties, present but excluding all such assets (including rights under and pursuant to all warranties, representations and guarantees made by suppliers) relating to or future infringement arising out of the Purchased Assets or misappropriation the Business or related to any raw materials or contracts in respect thereof;
(t) all of Intellectual Propertyeach Seller’s rights under this Agreement and each of the agreements, documents and instruments contemplated to be executed or delivered hereunder or in connection herewith, including, without limitation, each of the right Ancillary Agreements;
(u) all of each Seller’s assets not used in connection with the manufacture of Farm Tires at the Freeport Facility and not located at the Freeport Facility;
(v) all of each Seller’s rights and assets under or related to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights agreements, contracts, instruments and/or arrangements between such Seller and any utility service provider, including, without limitation, any provider of electricity, gas, water, sewerage, telephone or internet access services other than those that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) relate to the extent related to the items described in this Section 2.01(b) Freeport Facility or not otherwise included in that constitute Purchased Assets under Section 2.01(a)(xvi);
(xiv2.1(a)(vi) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)hereof; and
(xvw) any real all of the other property or interest in real property other than the Transferred Real Propertyand assets described on Schedule 2.2(w) hereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Titan International Inc), Asset Purchase Agreement (Titan International Inc)
Excluded Assets. Notwithstanding anything Section 1.1(a), Seller will retain and will not sell, convey, transfer or assign, and Purchaser will not purchase by virtue of this Agreement or the Transactions, any rights, properties or assets that are not expressly included as Purchased Assets in Section 2.01(a1.1(a) to the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including including, without limitation, the following:
(i) all cash and Cash Equivalents, including securities or other equity interests of any cash Person owned or Cash Equivalents residing held by Seller or any of Seller’s Affiliates other than as expressly provided in any collateral account securing any obligation or contingent obligationSection 1.1(a) above;
(ii) any and all Accounts ReceivableContracts that are not Purchased Contracts (the “Excluded Contracts”);
(iii) all refunds or credits, if any, of Taxes due to Seller or Seller’s Affiliates (or to any Contracts used holder of any equity interest in Seller) by reason of the Triage ownership of the Purchased Assets or the operation of the Business that to the extent attributable to any taxable period or portion thereof ending on or prior to the Closing Date, except to the extent such refund or credits relate to Taxes for which Purchaser actually bore the division, corporate office, overhead or back-office functions of Seller and its Affiliateseconomic cost pursuant to Section 4.7;
(iv) except all rights, claims and credits (including all indemnities, warranties and similar rights), defenses or causes of action in favor of Seller, Seller’s Affiliates or any of their respective Representatives to the extent included relating to (A) any insurance policies (except as set forth in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii1.1(a)(xii)), (B) any Contracts pursuant other Excluded Asset, (C) any Excluded Liability, (D) the assets, properties, business or operations of Seller or any Affiliate of Seller (excluding Canton Renewables and ▇▇▇▇ ▇▇▇▇▇▇) related to, arising from or incurred in connection with conditions or events occurring prior to the Valuation Date, (E) any matter for which rights in Intellectual Property are granted to Seller indemnifies Purchaser hereunder or (F) this Agreement or any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)other Transaction Agreement;
(v) all Intellectual Property other than information technology or management systems of Seller or any Affiliate of Seller not specified in Section 1.1(a) above, whether or not used (Aexclusively or otherwise) in the Transferred Intellectual Property, and (B) Business or in connection with the Additional Assigned Intellectual PropertyPurchased Assets;
(vi) all insurance policies, binders and claims and rights thereunder, and (except as set forth in Section 1.1(a)(xii)) all proceeds therefrom, whether or not used (exclusively or otherwise) in the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)Business or in connection with the Purchased Assets;
(vii) all current and prior insurance Contracts and all rights assets of any nature with respect thereto, including all insurance proceeds received Mavrix not primarily related to the operations of Canton Renewables or receivable thereunder;▇▇▇▇ ▇▇▇▇▇▇; and
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones employee benefit plans and similar assets primarily used by employees underlying employee benefit plans of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property’s Affiliates.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Clean Energy Fuels Corp.)
Excluded Assets. Notwithstanding anything contained in Section 2.01(a) 2.1 to the contrary, no Designated Purchaser Seller is not selling, and the Buyer Parties are not purchasing, any assets other than those specifically described in Section 2.1, and without limiting the generality of the foregoing, the term “Transferred Assets” shall purchase or otherwise acquire any rightexpressly exclude the following assets of Seller, title and interest in or to any assetsall of which shall be retained by Seller (collectively, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:):
(ia) all of the Seller Parties’ cash and Cash Equivalentscash equivalents, including any cash or Cash Equivalents residing accounts receivable, deferred charges and prepaid items, except as set forth in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv2.1(h);
(v) all Intellectual Property other than (Ab) the Transferred Intellectual PropertySeller Parties’ corporate books and records of internal corporate proceedings, tax records, work papers and (B) the Additional Assigned Intellectual Property;
(vi) the machinerybooks and records, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(viexcept as set forth in Section 2.1(j);
(viic) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunderthe Seller Parties’ bank accounts;
(viiid) all owned or leased desktop computersaccounting records (including records relating to Taxes) and internal reports relating to the business activities of the Seller Parties, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described except as set forth in Section 2.01(a)(xviii) or Section 2.01(a)(xix2.1(j);
(xe) all assets of any Seller Plan interest in or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to of Excluded Taxes relating to the Business, the Transferred Assets or the Assumed Liabilities for, or applicable to, any Pre-Closing Tax Period;
(xiif) the Registrations used in the manufacturing all Permits of the Products Seller Parties, including import and export licenses, except as set forth on Schedule 2.01(b)(xiiin Section 2.1(k);
(xiiig) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind the Seller Parties with respect to Contracts that are not Assumed Contracts (including all damages and payments for pastShared Contracts, present or future infringement or misappropriation of Intellectual Property, except as set forth in Section 5.8(f) through (i)) (the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi“Excluded Contracts”);
(xivh) all cells lines rights of the Seller Parties with respect to the Patents other than those described in Section 2.01(a)(xxthe Transferred Patents (the “Excluded Patents”), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and;
(xvi) any real property or interest all rights of the Seller Parties with respect to the Intellectual Property (other than Patents and Technology) other than the Transferred Intellectual Property (the “Excluded Intellectual Property”);
(j) all rights of the Seller Parties with respect to the Technology other than the Transferred Technology (the “Excluded Technology”);
(k) interests in real property other than pursuant to the Assumed Leases;
(l) any insurance policies and rights, claims or causes of action thereunder;
(m) any assets relating to any Employee Plan;
(n) all rights, claims and causes of action relating to any Excluded Asset or any Excluded Liability;
(o) all rights of the Seller Parties under this Agreement and the Ancillary Agreements; and
(p) all confidential communications between Seller and its Affiliates, on the one hand, and DLA Piper LLP (US) (“DLA Piper”), on the other hand, relating to the Business or the Transferred Real PropertyAssets or arising out of or relating to the negotiation, execution or delivery of this Agreement or the transactions contemplated hereby, including any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, and including any information or files in any format of DLA Piper in connection therewith.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Silicon Laboratories Inc.), Asset Purchase Agreement (Skyworks Solutions, Inc.)
Excluded Assets. Notwithstanding anything contained in this Agreement (including Section 2.01(a2.01) to the contrarycontrary and except to the extent of rights expressly provided in certain Transaction Agreements, no Designated neither Seller nor any of its Affiliates is selling, transferring, conveying or delivering (or causing to be sold, transferred, conveyed or delivered), and Purchaser shall purchase is not purchasing, assuming or otherwise acquire any right, title and interest in or to accepting any assets, properties, rights or properties and contracts of ▇▇▇▇▇▇, Seller or their respective any of its Affiliates, regardless of kindor any interests therein, description or location or whether tangible or intangible, real, personal or mixed, except for other than the Purchased Transferred Assets (all such assets, properties, rights and contracts of Seller or any of its Affiliates, or any interests therein, other than the Transferred Assets being referred to herein as the “Excluded Assets”). Without limiting the generality of the foregoing, including all of the followingfollowing shall constitute Excluded Assets:
(ia) all cash and Cash Equivalentscash equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any checking accounts, bank accounts, certificates of deposit and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the divisionsecurities, corporate office, overhead or back-office functions of Seller and or any of its Affiliates;
(ivb) except all intercompany receivables and other amounts due from Seller or its Affiliates;
(c) all contracts to which Seller or any Affiliate thereof is a party or is otherwise bound other than the Assigned Contracts;
(d) any real estate leases, real estate title, or any installations, fixtures, and other improvements at Seller’s or any of its Affiliates’ leased real estate, whether or not used for the benefit of the Business, in each case other than the Assigned Lease or as contemplated by Section 2.01(g);
(e) all furniture, fixtures, equipment (including computer hardware), machinery and other tangible personal property of Seller or any of its Affiliates that are not listed on Schedule II(c);
(f) all Permits of Seller or its Affiliates;
(g) Seller’s or any of its Affiliates’ rights under any policies of insurance or any benefits, proceeds, or premium refunds payable or paid thereunder or with respect thereto;
(h) all rights of Seller or any of its Affiliates to file for or receive any refunds, credits or similar benefits for Taxes levied and imposed upon, or in connection with, the Transferred Assets or the conduct or operation of the Business allocable to any Pre-Closing Period or to the extent portion of the Straddle Period ending on the Closing Date;
(i) the Excluded Books and Records;
(j) all rights of Seller or any of its Affiliates under the Transaction Agreements;
(k) all rights of Seller or any of its Affiliates to indemnification from any Person with respect to any of the Excluded Liabilities;
(l) all prepaid Taxes allocable to taxable periods or portions thereof ending on or before the Closing Date;
(m) all Intellectual Property owned by Seller or any of its Affiliates (including all rights in and to the Seller Trademarks), other than the Transferred Intellectual Property;
(n) all Intellectual Property licensed to Seller or any of its Affiliates, other than Intellectual Property licensed pursuant to an Assigned Contract;
(o) all of Seller’s or any of its Affiliates’ e-mail addresses, URLs, websites, website content, and telephone numbers, other than as contemplated by Section 2.01(h);
(p) all bank accounts and lockboxes used in the Business;
(q) all assets in respect of any Employee Benefit Plan;
(r) any assets arising out of, and any associated claims arising out of, the Excluded Liabilities;
(s) any legal or beneficial interest in the capital stock and other equity interests of Seller or its Affiliates;
(t) the accounts and notes receivable not included in the Purchased Assets under Transferred Assets;
(u) any assets transferred or otherwise disposed of by Seller or any of its Affiliates (other than any intercompany transfers or sales) in compliance with Section 2.01(a)(v5.01(a) or Section 2.01(a)(xviii), any Contracts pursuant prior to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)the Closing;
(v) all Intellectual Property other than (A) accounting systems owned or used by Seller or any of its Affiliates, whether or not used in connection with the Transferred Intellectual Propertyoperation of the Business, including those that comprise the Shared Service Functions and (B) the Additional Assigned Intellectual PropertyAssets;
(viw) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used utilized by employees of Seller or any of its Affiliates in connection with businesses other than the Transferred Employees;
(ix) all other Information Technology Assets other than Business, including those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);that comprise the Shared Service Functions and Assets; and
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, Shared Service Functions and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real PropertyAssets.
Appears in 2 contracts
Sources: Master Transaction Agreement, Master Transaction Agreement (Aetna Inc /Pa/)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrary, no Designated Purchaser Buyer shall purchase or otherwise acquire not purchase, and the Purchased Assets shall not include, any right, title and interest in or to any assetsof the following assets of Parent and its Affiliates (collectively, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:):
(i) all cash and Cash Equivalentscash equivalents, securities and negotiable instruments on hand, in lock boxes, in financial institutions or elsewhere, including any cash or Cash Equivalents residing in any collateral cash account securing any obligation or contingent obligation;
(ii) all intercompany receivables between Parent and any of its Affiliates, or between any Affiliate of Parent and any other Affiliate of Parent, and all Accounts Receivableaccounts, notes and other receivables resulting from sales by Parent or its Affiliates of products (whether or not generated by the Business) prior to Closing, whether current or noncurrent, including all file documentation related to such accounts, notes and other receivables, including invoices, shipping documents, communications and correspondence submitted to or received from customers related to such sales;
(iii) except as otherwise expressly set forth in this Agreement or the Ancillary Agreements, the ownership right in any Contracts property, interest, right or asset, including Contracts, that is used in the Triage Business that relate to the divisionand primarily in one or more other businesses of Parent (each, corporate office, overhead or back-office functions of Seller and its Affiliatesa “Shared Asset(s)”);
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) all Real Property of Parent and its Affiliates (including any of Parent’s or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(ivits Affiliates interests therein as a tenant or otherwise);
(v) all Intellectual Property businesses of Parent and its Affiliates other than the Business (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property“Excluded Businesses”);
(vi) subject to Section 5.05 and any license granted in accordance therewith, the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)Licensed Marks;
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunderthe Business Licensed Intellectual Property to be licensed to Buyer pursuant to the Seller Out-License Agreement;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred EmployeesParent Retained Intellectual Property;
(ix) all Parent’s and its Affiliates’ investments in, or joint ventures or other Information Technology Assets partnerships with, other than those described in Section 2.01(a)(xviii) third-party businesses (equity, debt or Section 2.01(a)(xixotherwise), whether or not related to the Business (collectively, “Parent’s Investments”);
(x) all assets rights and privileges under all Contracts of any Seller Plan Parent or any similar benefit planof its Affiliates, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Sellerother than the Acquired Contracts and Shared Contracts;
(xi) subject all deposits and prepaid expenses made or paid to the provisions of Article VIIIutility companies, any right to any refund vendors or credit with respect to Taxes relating to any Pre-Closing Tax Periodother Persons;
(xii) the Registrations used in the manufacturing all Tax assets (including, but not limited to, any refunds or credits with respect to any Taxes paid or incurred by Parent or any Seller, any prepaid Taxes of Parent or any Seller, and any other rights to Taxes of Parent or any of the Products set forth on Schedule 2.01(b)(xiiSellers);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind Tax Returns (including all damages supporting work papers and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) other documents relating to the extent Tax policies of Parent or any Seller, transfer pricing studies and other proprietary information related to the items described in this Section 2.01(bpreparation and filing of Tax Returns, calculations of Tax and similar matters) or that are not otherwise included in Purchased Assets under Section 2.01(a)(xvi)Assets;
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant subject to Section 2.01(a)(xx)9.16, any attorney-client privileges and rights of Parent or any of its Affiliates; and
(xv) any real property all rights of Parent and its Affiliates arising under this Agreement or interest in real property other than the Transferred Real PropertyAncillary Agreements, or from the consummation of the transactions contemplated hereby and thereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Minerva Surgical Inc), Asset Purchase Agreement (Minerva Surgical Inc)
Excluded Assets. Notwithstanding anything The parties hereto agree that assets of Seller and the Subsidiaries not expressly described in Section 2.01(a) 2.1 are not intended to be part of the contraryTransferred Assets and are excluded from the purchase and sale contemplated hereby. Without limiting the generality of the foregoing, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets such excluded assets (the “"Excluded Assets”), including ") include the following:
(ia) all All cash and Cash Equivalents, including any cash or Cash Equivalents residing equivalents of Seller and the Subsidiaries relating to the Facilities in any collateral account securing any obligation or contingent obligationexcess of $10,000,000;
(iib) any and all Accounts Receivable[Intentionally omitted.];
(iiic) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions The rights of Seller and its Affiliates;
(iv) except to the extent or any Subsidiary under any insurance policy, if any, included in the Purchased Transferred Assets which relates to any Excluded Asset or Excluded Liability (as defined in Section 2.4) (it being understood, however, that Buyer shall have no obligation to take any action under Section 2.01(a)(vany such policy to seek any recovery except at the reasonable request, and at the sole expense, of Seller or a Subsidiary (other than a Transferred Subsidiary) or Section 2.01(a)(xviii), to continue any Contracts pursuant to which rights such policies in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(ivforce);
(vd) all Intellectual Property The rights of Seller or of any Subsidiary to receive mail and other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Propertycommunications addressed to any of them with respect to Excluded Assets or Excluded Liabilities;
(vie) All property, plant, equipment and other assets pertaining to any facility, business or operations of HEALTHSOUTH, Seller or any of their respective Affiliates not included in the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)Facilities;
(viif) all current and prior insurance Contracts Any and all rights respecting computer and data processing hardware, software or firmware that is proprietary to HEALTHSOUTH or any Affiliate of HEALTHSOUTH (other than a Transferred Subsidiary, and other than Seller or a Subsidiary but only to the extent that such hardware, software or firmware is used solely in connection with the operations of the Facilities), and any nature with respect theretocomputer and data processing hardware or firmware, including all insurance proceeds received whether or receivable thereundernot located at a Facility, that is part of a computer system the central processing unit for which is not located at a Facility
(g) All amounts due to the Subsidiaries arising from Intercompany Transactions;
(viiih) all owned or leased desktop computersSuch other assets, laptopsif any, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those as are specifically described in Section 2.01(a)(xviiiSchedule 2.2(h) and assets which would be Transferred Assets except for the operation of Sections 2.12, 2.15, 8.5, 8.6 or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)9.5; and
(xvi) All capital stock of Subsidiaries that are not Transferred Subsidiaries. To the extent that any real property items which constitute Excluded Assets are Assets of a Transferred Subsidiary, Seller shall cause such Transferred Subsidiary to convey such items to Seller by dividend, distribution or interest otherwise immediately prior to the Closing. Buyer acknowledges and agrees that Seller shall have the right to remove, and may remove at any time prior to or within 30 days following the Closing Date (in real property other than each case, at Seller's expense, but without charge by Buyer for storage), from time to time any and all of the Transferred Real PropertyExcluded Assets from the Facilities, provided that Seller shall do so in a manner that does not unduly or unnecessarily disrupt Buyer's normal business activities at the Facilities.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Healthsouth Corp), Purchase and Sale Agreement (Integrated Health Services Inc)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary in this Agreement, no Designated Purchaser H▇▇▇▇▇ and its Retained Subsidiaries shall purchase be entitled to retain or otherwise acquire any to receive from the Contributed Subsidiaries, whether prior to or after the Closing, all of the right, title and interest in or to any assets, rights or properties of H▇▇▇▇▇▇▇ and its Subsidiaries in and to the following Properties as of the Closing Date and none of such Properties shall be deemed to be a Contributed Asset (collectively, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:):
(i) all cash Properties of H▇▇▇▇▇ and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationits Subsidiaries which are not Related to the MCD Business;
(ii) any and all Accounts ReceivableH▇▇▇▇▇ Intercompany Liabilities;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller all Excluded Books and its AffiliatesRecords;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)all Excluded MCD Business Contracts;
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, of H▇▇▇▇▇ and (B) the Additional Assigned Intellectual Propertyits Subsidiaries listed on Schedule K;
(vi) (A) all leases and subleases of real property, fixtures or equipment from third parties by H▇▇▇▇▇ and its Subsidiaries other than the machinery, equipment, mechanical Contributed Leases and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media (B) those leases and fixtures described subleases listed on Schedule 2.01(b)(vi)L;
(vii) all current Tax assets (including duty and prior insurance Contracts tax refunds and all rights prepayments) of H▇▇▇▇▇ or any nature with respect thereto, including all insurance proceeds received or receivable thereunderof its Retained Subsidiaries;
(viii) all owned Tax Returns of H▇▇▇▇▇ or leased desktop computersany of its Retained Subsidiaries and all Tax Return workpapers related thereto, laptops, tablets, mobile phones excepting Tax Returns and similar assets related workpapers relating primarily used by employees of Seller to the MCD Business or its Affiliates other than the Transferred EmployeesContributed Assets;
(ix) all other Information Technology Assets other than those described rights in Section 2.01(a)(xviii) or Section 2.01(a)(xix)connection with, and assets of, the MCD Employee Benefit Plans;
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Sellerinsurance policies and rights thereunder other than those listed on Schedule M;
(xi) subject to all invoices, shipping documents, purchase orders and other preprinted business forms that have any Trademark thereon other than those included in the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax PeriodContributed Intellectual Property;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii)all cash and cash equivalents;
(xiii) all claims, counterclaims, causes insurance proceeds which H▇▇▇▇▇ or any of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the its Subsidiaries have a right to use and recover for past infringements receive unless such proceeds are Contributed Insurance Proceeds or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout are reflected in the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi)Audited Financial Statements;
(xiv) all cells lines other than those described Governmental Authorizations of H▇▇▇▇▇ and its Subsidiaries which (A) are not transferable by their terms or may not be transferred without the consent, approval, authorization or waiver of the relevant Government Entity and (B) are not required by Newco and its Subsidiaries in Section 2.01(a)(xx), including order to be able to continue to conduct the remaining portion of any cell line of which an aliquot thereof is included MCD Business after the Closing in all material respects as currently conducted by H▇▇▇▇▇ and its Subsidiaries (the Purchased Assets pursuant to Section 2.01(a)(xx“Newco Governmental Authorizations”); and
(xv) any real property or interest in real property other than the Transferred Real Property.Properties set forth on Schedule N.
Appears in 2 contracts
Sources: Merger Agreement (Harris Corp /De/), Merger Agreement (Stratex Networks Inc)
Excluded Assets. Notwithstanding anything in the terms of Section 2.01(a) 2.1, the Sellers will not sell, convey, assign, transfer or deliver to the contraryPurchaser, no Designated and the Purchaser shall will not purchase or otherwise acquire any rightacquire, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets do not include, any assets other than the Purchased Assets, including but not limited to any of the following assets (the “Excluded Assets”):
(a) all cash, cash equivalents, bank deposits, investment accounts, lockboxes, certificates of deposit, marketable securities, bank accounts, corporate credit cards and other similar cash items of the Sellers;
(b) all notes and accounts receivable of the Sellers;
(c) all minute books, records, stock ledgers, Tax records and all other materials that the Sellers are required by Law to retain (provided that copies of such records shall, to the extent legally permissible and to the extent that they constitute Purchased Intellectual Property or Purchased Assets, be provided to the Purchaser);
(d) all financial books and records with respect to the Project and the Purchased Assets, including receipts and invoices (provided that the following:Sellers shall, as soon as reasonably practicable following receipt of an itemized request from Purchaser, provide to Purchaser copies of those itemized financial records so requested by Seller to be provided);
(e) the shares of the capital stock of the Sellers and their Affiliates and all of the Sellers’ or any of their Affiliates’ ownership interest in any Subsidiary or other Person;
(f) all insurance policies, binders and claims and rights thereunder and proceeds thereof;
(g) all rights under all Contracts of the Sellers set forth on Schedule 2.2(g) and all Contracts of the Sellers other than the Included Contracts;
(h) all intellectual property rights of the Sellers other than the Purchased Intellectual Property;
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationinventory of the Sellers other than the Inventory;
(iij) any all machinery, equipment and all Accounts Receivableother items of tangible personal property of the Sellers other than the Equipment;
(iiik) any Contracts used all real property and rights in the Triage Business that relate to the division, corporate office, overhead or back-office functions respect of Seller and its Affiliatesreal property;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(vl) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of arising under any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Excluded Liability; and
(xvm) all rights of the Sellers under this Agreement or any real property or interest in real property other than of the Transferred Real PropertyAncillary Agreements.
Appears in 2 contracts
Sources: Asset Sale and Purchase Agreement, Asset Sale and Purchase Agreement (Tactile Systems Technology Inc)
Excluded Assets. Notwithstanding anything in Section 2.01(a) this Agreement to the contrary, no Designated Purchaser shall purchase or otherwise acquire any rightexcept for the Purchased Assets, title and interest in or to any all other assets, properties or rights or properties of ▇▇▇▇▇▇(including Contracts), Seller or their respective Affiliateswherever located, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, tangible or intangible, of the Seller Entities, the Rexam Entities and each of their respective Affiliates (provided, however, that for purposes of this Section 1.2 (except for Section 1.2(c), 1.2(d), 1.2(j), 1.2(m), 1.2(n), 1.2(o) and 1.2(p)), no Purchased Entity shall be considered an Affiliate of Seller, Rexam, or any of their other Affiliates that is not a Purchased Entity) (collectively, and including the Purchased Assets (assets listed below, the “Excluded Assets”)) shall be retained by the Seller Entities, the Rexam Entities and each of their respective Affiliates, and shall be excluded from the Purchased Assets, including the followingSeller Entities’, the Rexam Entities’ and each of their respective Affiliates’ right, title and interest to, the following assets, properties and rights:
(ia) any and all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(iib) any and all Accounts Receivable;
Receivable (iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions other than Accounts Receivable of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(ivEntities);
(v) all Intellectual Property other than (Ac) the Transferred Intellectual Propertyequity, equity participation, voting rights or other participations and interests in the entities listed on Schedule 1.2(c) held by the Purchased Entities as of the date of this Agreement (Bthe “Excluded Entities”) and transferred to Seller, Rexam or one or more of their respective Affiliates that is not a Purchased Entity in accordance with the Additional Assigned Intellectual PropertyRestructuring Steps Plan;
(vid) the machineryassets owned by the Purchased Entities as of the date of this Agreement and to be transferred to Seller, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)Rexam or one or more of their respective Affiliates that is not a Purchased Entity in accordance with the Restructuring Steps Plan;
(viie) all current and prior insurance Contracts (i) any and all rights Tax refunds and prepayments of Excluded Taxes and (ii) any nature with respect thereto, including all insurance proceeds received net operating losses or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees other tax attributes of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating related to any Pre-Closing Tax PeriodPeriods;
(xiif) any and all Tax Returns except as set forth in Section 1.1(b)(iii)(B);
(g) any and all Real Property other than the Registrations used Business Real Property;
(h) any and all Business Permits and Environmental Permits except as set forth in the manufacturing of the Products Section 1.1(b)(vi) and any Permits other than Business Permits;
(i) any and all assets and rights related to Employee Benefit Plans (except as set forth in Section 1.1(b)(ix));
(j) except as set forth on Schedule 2.01(b)(xii4.8, any and all insurance policies (including self-insurance arrangements) and all rights and proceeds thereunder, whether or not related to the Business;
(k) any and all credits, prepaid expenses, deferred charges, advance payments, security deposits, prepaid rent, prepaid items and duties;
(l) any (1) personnel records with respect to the Transferred Business Employees that Seller, Rexam or any of their Affiliates are required by Law to maintain in their possession and (2) Books and Records relating to any Purchased Asset or Assumed Liability that Seller, Rexam or any of their Affiliates are required by Law to maintain in their possession;
(m) all Excluded Fixtures, Equipment and Tangible Personal Property;
(n) any and all rights under (i) the Customer Contracts (or portions thereof) set forth on Schedule 1.2(n)(i), (ii) the Contracts (or portions thereof) set forth on Schedule 1.2(n)(ii), (iii) any Shared Contract (or portions thereof) which Seller or its Affiliates are to retain or receive, as described in Section 1.13, (iv) any other Contract with respect to Intellectual Property other than any Business IP License (the Contracts described under the foregoing clauses (i) — (iv) being the “Excluded Business Contracts”) and (v) any other Contract that is not a Specified Business Contract;
(o) any and all Seller and Rexam Marks, without limiting the license set forth in Section 4.9;
(p) any and all Intellectual Property other than Transferred Intellectual Property, without limiting the licenses set forth in Section 4.9 and Section 4.10;
(q) any and all rights to all causes of action, lawsuits, judgments, claims, defenses against third parties and demands of any nature (1) arising prior to the Closing Date, whether arising by way of counterclaim or otherwise, in each case whether or not related to the Business, the Purchased Assets (other than any of the foregoing held by the Purchased Entities) or the Assumed Liabilities and (2) arising on or after the Closing Date, other than as set forth in Section 1.1(b)(v);
(xiiir) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding guaranties, warranties, indemnities and similar rights that have been, now (1) in respect of the Business or hereafter may be secured throughout a Purchased Asset (other than any of the world with respect to any Intellectual Propertyforegoing held by the Purchased Entities) for the period prior to the extent related to Closing Date and (2) arising on or after the items described Closing Date, other than as set forth in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi1.1(b)(viii);
(xivs) all cells lines rights of Seller, Rexam or their Affiliates arising under this Agreement, the Ancillary Agreements or from the consummation of the Transaction and the consummation of the transactions contemplated by the Ancillary Agreements;
(t) the corporate charter, qualification to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, corporate seal, minute books, stock transfer books and blank stock certificates for any entity other than those described in Section 2.01(a)(xx)a Purchased Entity;
(u) any intercompany receivables between (i) any Seller Entity or Rexam Entity and any of their respective Affiliates, including the remaining portion or between any such Affiliate and any other such Affiliate or (ii) any Purchased Entity and any Affiliate of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)a Seller Entity or Rexam Entity; and
(xvv) any real property and all assets listed on Schedule 1.2(v). Seller and Purchaser acknowledge and agree that neither Purchaser nor any of its Affiliates will acquire or be permitted to retain hereunder any direct or indirect right, title or interest in real property other than the Transferred Real Propertyany Excluded Assets, except as provided in this Agreement.
Appears in 2 contracts
Sources: Equity and Asset Purchase Agreement (Ardagh Finance Holdings S.A.), Equity and Asset Purchase Agreement (Ball Corp)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary in this Agreement, no Designated Purchaser shall purchase nothing in this Agreement will constitute a transfer to Buyer, or otherwise acquire will be construed as conferring on Buyer, and Buyer will not acquire, any right, title and or interest in or to any assetsof the following (collectively, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”):
(a) the real property described on Schedule 2.2(a) (collectively, the “Excluded Real Property”);
(b) (i) all of Seller’s easements in the Transferred Territory that are not primarily related to the VA Distribution Business, and (ii) all of Seller’s easements that are described on Schedule 2.2(b) (collectively, the “Excluded Easements”);
(c) the Transmission Facilities;
(d) items of Inventory excluded from the definition of Acquired Assets pursuant to Section 2.1(f);
(e) all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and are not owned by Seller or used or held for use by Seller primarily in the following:VA Distribution Business in the Transferred Territory and any vehicles or trailers owned by Seller that are not set forth on Schedule 2.1(g);
(f) the Equipment Leases and all other Contracts that would be Transferred Contracts but for the fact that they relate primarily to assets or operations located outside the Transferred Territory or to assets or operations other than the VA Distribution Business (the “Shared Contracts”) and all other Contracts that are not Transferred Contracts;
(g) Permits of Seller that are not primarily related to the VA Distributions Business in the Transferred Territory;
(h) any other asset of Seller that is not primarily used by Seller in the VA Distribution Business in the Transferred Territory;
(i) all cash and Cash Equivalentscash equivalents, including any cash held pursuant to money pool arrangements, and all other Current Assets of Seller except as provided in Section 2.1(f), (g), (m) or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation(s), ;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(vj) all Intellectual Property other than the Intellectual Property described on Schedule 2.1(o) (A) the Transferred “Retained Intellectual Property, and (B) the Additional Assigned Intellectual Property”); subject to Buyer’s rights as provided in Section 7.9;
(vik) the machinery, equipment, mechanical property and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures equipment described on Schedule 2.01(b)(vi2.2(k) plus any vehicles and trailers owned by Seller that are not listed on Schedule 2.1(g) (collectively, the “Excluded Tangible Personal Property”);
(viil) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunderSeller’s Shared Equipment;
(viiim) subject to Section 2.5, any rights under an Equipment Lease or related equipment or vehicles that Seller is not permitted to assign at Closing;
(n) all owned assets disposed of by Seller after the date of this Agreement, to the extent this Agreement does not prohibit the disposition;
(o) all personnel records of Seller and its Affiliates relating to their employees other than Transferring Employee Records and other records that are required to be disclosed by applicable Laws, subpoena or leased desktop computerslegal or regulatory process;
(p) except for the assignment and assumption of any Power Purchase Agreement otherwise contemplated hereby, laptopsall intercompany agreements between Seller and an Affiliate of Seller, tabletsand all accounts owing by and among Seller and any of its Affiliates, mobile phones whether or not any such intercompany agreement or account relates to the provision of goods and similar assets primarily used by employees services, payment arrangements, intercompany charges or balances, or the like;
(q) subject to Section 7.7, all rights to refunds of Taxes with respect to the VA Distribution Business or the Acquired Assets attributable to taxable periods, or portions thereof, ending prior to or as of the Effective Time, and any rights to refunds of Taxes with respect to any other assets, properties or operations of Seller or any of its Affiliates other than the Transferred EmployeesAffiliates;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xir) subject to the provisions of Article VIIISection 2.1(n), any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, rights of set off and rights of set-off recoupment of Seller against third parties relating to the VA Distribution Business in the Transferred Territory prior to the Effective Time;
(s) subject to Section 2.1(n), all insurance policies, bonds, letters of credit or similar items, and any kind (cash surrender value in regard thereto, including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right deposits made by Seller with regard to use and recover for past infringements or misappropriations of Intellectual Propertyworkers’ compensation coverage, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect claims related to any Intellectual Propertyof the foregoing;
(t) all assets attributable to or related to Benefit Plans;
(u) the extent Collective Bargaining Agreement;
(v) subject to Section 7.23, all power purchase or supply agreements, transmission service agreements, power, fuel or commodity hedging or derivative or forward purchase agreements, and any other agreements not primarily related to the items described in this Section 2.01(b) construction, ownership, operation or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including maintenance of the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Acquired Assets; and
(xvw) any the real and personal property or interest in real property other than subject to the Transferred Real Propertysale to the Town of Front Royal, Virginia pursuant to that certain ordinance of the town council of the Town of Front Royal, Virginia, dated January 12, 2009.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Allegheny Energy, Inc), Asset Purchase Agreement (Allegheny Energy, Inc)
Excluded Assets. Notwithstanding anything in Section 2.01(a) any other provision of this Agreement to the contrary, no Designated Purchaser the acquisition contemplated hereby shall purchase not include the following assets of the Division (collectively, the "Excluded Assets"): (a) all cash on hand as of the Closing --------------- Date held by Sellers with respect to the Division or otherwise acquire by the Company and all other cash in any of Sellers' or the Company's bank or savings accounts; (b) all letters of credit, stocks, bonds, notes, certificates of deposit and any other similar items or investments held by AWI with respect to the Division or by the Company; (c) all accounts receivable of AWI with respect to the Division or of the Company; (d) all assets associated with employees of the Division who do not constitute Transferred Employees (as defined in Section 5.7(a)); (e) all insurance policies relating to or associated with the Division and the Business other than (x) the ▇▇▇▇▇ Insurance and the Post Closing Insurance (each as defined in Section 5.9 hereof), but only to the extent that such ▇▇▇▇▇ Insurance and Post Closing Insurance by their respective terms and the terms of any related agreements apply to the Company and (y) any title insurance policies issued with respect to the Real Property (as defined in Section 3.5(a)); (f) all installation tools and accessories and other outsourced products of the Division listed on Schedule 1.3(f) attached hereto, which are manufactured or held for --------------- resale by or on behalf of AWI and its affiliates, other than the Company; (g) all laminate accessories manufactured or held for resale by or on behalf of AWI and its affiliates, other than the Company; (h) all right, title and interest in or and to any assets, rights or properties of AWI's license agreement with S.C. ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except ▇ for the Purchased Assets (the “Excluded Assets”), including the following:
AWI branded floor care products; (i) all cash proprietary technology and Cash Equivalents, including any cash or Cash Equivalents residing intellectual property rights in any collateral account securing any obligation or contingent obligation;
(ii) and to any and all Accounts Receivable;
▇▇▇▇▇▇▇▇▇ Proprietary Products (iiias defined in that certain Private Label Supply Agreement attached hereto as Exhibit A (the "Private Label --------- ------------- Supply Agreement")) any Contracts used and the specifications for the products listed and ---------------- identified on and attached as Specifications Nos. AWI-1 through AWI-12 (the "Specifications") on that certain Specification Agreement attached hereto as -------------- Exhibit B (the "Specification Agreement") and incorporated herein as if set --------- ----------------------- forth in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect theretoentirety, including all insurance proceeds received or receivable thereunder;
patents, design patents, patent applications, patent disclosures, and all related continuation, continuation-in-part, divisional, reissue, reexamination, utility model, certificate of invention and industrial design registrations and applications, information, test reports, processes, operating and testing procedures, practices, formulae, trade secrets, know-how, inventions, techniques and other confidential information, and any improvements, developments and enhancements thereto; (viiij) all owned trademarks, trade names, company names or leased desktop computersother rights containing or related to AWI and its affiliates, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
Company, and any derivative thereof, including without limitation, those trademarks listed on Schedule 1.3(j); (ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(xk) all assets of any Seller Employee Benefit Plan sponsored or any similar benefit plan, program or arrangement that is --------------- maintained or contributed to by any Seller or Affiliate of Seller;
AWI; (xil) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent those assets exclusively related to the items described manufacture of adhesives for AWI's "Place 'n Press" products, including, without limitation, the hot-melt processing equipment at the Company's plant located in this Section 2.01(bArlington, Texas ("Hot-Melt Assets"); (m) any proceeds or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including recovery from the remaining portion sales and use --------------- tax refunds pursuant to the sales and use tax audit of any cell line of which an aliquot thereof is included the Company in the Purchased Assets pursuant to Section 2.01(a)(xx)states of Georgia, Texas and Illinois; and
and (xvn) any real property or interest in real property such other assets of AWI and its affiliates, other than the Transferred Real PropertyCompany, which are used in connection with the operation of the Division and are listed on Schedule 1.3(n) attached hereto. To the extent that any of the Excluded Assets constitute assets of the Company, the Company will transfer such assets to AWI prior to Closing, except as otherwise provided in this Agreement.
Appears in 1 contract
Sources: Acquisition Agreement (Armstrong World Industries Inc)
Excluded Assets. Notwithstanding anything the terms of Section 1.01 of this Agreement, Seller is not selling, transferring or assigning to Buyer any of its assets other than the Assets specifically described in Section 2.01(a1.01 of this Agreement and Sections 1.01(a)-(j) of the Disclosure Memorandum ("Excluded Assets"). Without limiting the generality of the immediately preceding sentence, Seller is retaining all of the following assets:
(a) all assets, if any, that are listed in Section 1.02(a) of the Disclosure Memorandum;
(b) [Reserved];
(c) the names and marks "Hanco", "Hanco Systems, Inc.," "▇▇▇▇▇▇" and any name or ▇▇▇▇ derived therefrom, and all corporate certificates of authority, corporate minute books, tax returns, corporate records and the corporate stock record or register of Seller;
(d) such licenses, permits or other certificates of authority that are not assignable or transferable or are not related to the contraryAssets;
(e) all rights of Seller to receive refunds, no Designated Purchaser shall purchase returns, reimbursements, credits or otherwise acquire any right, title and interest in or similar rights with respect to any assetsTaxes, Excluded Assets or any other Retained Liabilities of Seller relating to the operation or ownership of the Business or Assets, whether arising on, prior to or after the Closing Date;
(f) the EFT Services and Data Processing Services Agreement, dated as of November 16, 1998, between Seller and M&I Data Services;
(g) the warehouse lease (the "Warehouse Lease") on warehouse space at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ (the "Warehouse");
(h) all of Seller's catalogs, stationery and other materials bearing the Seller's name, tradenames, marks, logos or images, and all of Seller's training manuals, tapes and any other material that is used by Seller or its affiliates outside the United States of America;
(i) all Contracts of Seller (including all independent sales representative and distributor Contracts) not specifically conveyed to Buyer pursuant to Section 1.01 of this Agreement;
(j) any payments from and all of Hanco's rights to payment of any interchange, residuals or properties other amounts ("collectively, "Residuals") with respect to all periods ending on the Closing Date from ▇▇▇▇, M&I Data Services, a division of ▇▇▇▇▇▇, Seller or ▇▇ & ▇▇▇▇▇ Corporation and Money Access Service Inc. and their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash successors and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)assigns; and
(xvk) any real property books, records and other documents and information (whether in documentary, electronic or interest in real property other than form) not relating to the Transferred Real PropertyAssets and/or the Assumed Liabilities.
Appears in 1 contract
Excluded Assets. Notwithstanding anything the foregoing, the following assets are expressly excluded from the purchase and sale contemplated hereby (the "Excluded Assets") and, as such, are not included in Section 2.01(athe assets to be conveyed hereby:
(i) Seller's and its post-Closing Affiliates' rights under or pursuant to this Agreement, including under any agreement entered into in connection with this Agreement or the transactions contemplated hereby or thereby;
(ii) Seller's and its post-Closing Affiliates' general ledger, accounting records, minute books, statutory books and corporate seal, provided that Purchaser shall be given copies of the general ledger and accounting records as such documents exist as of the Closing Date to the contraryextent such documents relate to the Business;
(iii) any right to receive mail and other communications addressed to Seller or any of its post-Closing Affiliates, no Designated Purchaser shall purchase other than mail and other communications relating to the Division Assets or otherwise acquire the Assumed Liabilities;
(iv) all contracts, agreements, arrangements and other assets listed on Schedule 1.1(b)(iv) attached hereto;
(v) all intercompany receivables (short and long term), intercompany investments or other intercompany assets of any rightkind or nature;
(vi) all accounts receivable (short and long term) and the related specifically identified dollar amount of allowances for doubtful accounts set forth on Schedule 1.1(b)(vi) attached hereto, title and interest in or which will include all such amounts related to any assetsBirmingham Steel, rights or properties of Microfibres, Inc., Agrilink (including amounts owed to Mellon Bank), Eskimo Pie Corporation, Cherrydale Farms, Foxboro Company (Invensys)/Ken's Foods, Foxboro Company/Alto Dairy, Shamrock Foods Company, Sugar Creek Packaging Company, Gulf States Steel, Inc., ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Seller or their respective Affiliates▇▇▇▇▇▇▇▇ Brands International, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash Inc. and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationWestin;
(iivii) any cash and all Accounts Receivablecash equivalents;
(iiiviii) any Contracts used interests in any real estate, whether leased or subleased located at (A) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, Chicago, Illinois, (B) Mississauga, Ontario, (C) Malvern, Pennsylvania (which will be the Triage Business that relate to subject of the divisionSublease Agreement), corporate office(D) Nuremberg, overhead Germany, (E) Alpharetta, Georgia (which will be the subject of the Second Sublease Agreement) or back-office functions (F) ▇▇▇▇▇▇-in-▇▇▇▇▇, United Kingdom (which will be the subject of the Third Sublease Agreement);
(ix) any of the capital stock of Seller and or any of its Affiliates;
(ivx) except to the extent included in the Purchased Assets under Section 2.01(a)(vas set forth on Schedule 1.1(a)(xiv) or Section 2.01(a)(xviii)attached hereto, any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan kind or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate nature of SellerSystems & Computer Technology GmbH;
(xi) subject except for any assets or services to be made available under this Agreement or any other agreement entered into in connection with this Agreement, any corporate or intercompany services or benefits provided by Seller or any of its post-Closing Affiliates to the provisions of Article VIIIDivision, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Periodincluding legal, real property, tax, human resources and information systems;
(xii) all insurance and condemnation proceeds received after the Registrations used in Closing Date under policies of insurance maintained by Seller or any of its Affiliates with respect to damage, non-conformance of or loss to the manufacturing of Division Assets incurred prior to the Products set forth on Schedule 2.01(b)(xii)Closing Date;
(xiii) all claims, counterclaims, causes rights and claims to refunds or credits of action, choses in action, rights of recovery, and rights of setTaxes paid or payable by Seller or any post-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi)Closing Affiliate;
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property.
Appears in 1 contract
Sources: Asset Purchase Agreement (Systems & Computer Technology Corp)
Excluded Assets. Notwithstanding anything The following are collectively referred to as the "Excluded Assets" and are not included in Section 2.01(athe Assets: ---------------
(a) all Communications Facilities (as defined in the Sublease), including but not limited to AirTouch's Improvements and Communications Equipment (each as defined in the Sublease);
(b) the Reserved Space as described in the Sublease, including without limitation all space at a Tower Site occupied by AirTouch's Improvements and Communications Equipment (each as defined in the Sublease) and non-exclusive use of all real estate interests (including fee and leasehold interests, licenses, rights-of-way and easements) on which switch equipment and associated loading docks, patios, offices and parking lots of Sublessors or their Affiliates is located or necessary to such equipment's operation;
(c) any equipment or transmission systems used by AirTouch, any other Sublessor or any of Sublessors' Affiliates for the remote monitoring of the Towers;
(d) all Intellectual Property of Sublessors or any Affiliate of Sublessors, other than plans and specifications of the Towers and data (in electronic or machine-readable form) relating to third party tenants and lessors with respect to the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to Towers;
(e) any assets, properties or rights, including Contracts, that are not exclusively Assets;
(f) all rights that accrue or properties will accrue to, and all rights retained by and/or granted to, Sublessors under this Agreement, the Sublease or any of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”)other Transaction Documents, including the following:consideration paid or to be paid to Sublessors hereunder;
(g) any claims or rights against third parties except to the extent such claims or rights relate to the Assets;
(h) assets of any Employee Plan or employee benefit arrangement;
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing the assets specified in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)1.14; and
(xvj) any real Tower Sites (and all Towers, Tower Related Assets and other assets and rights associated with such Tower Sites) excluded from the Assets or excluded from becoming subject to the Sublease pursuant to Section 2.2 (Restricted Items) hereof, or which are to remain the property of, or interest in real property other than are to be for the Transferred Real Propertybenefit of, any Sublessor pursuant to the Sublease.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to Buyer expressly understands and agrees that all of the contraryassets of Seller and the Retained Subsidiaries, no Designated Purchaser other than the Purchased Assets, the Purchased Subsidiaries and the Shares, shall purchase or otherwise acquire any right, title and interest in or to any assets, rights or properties remain the property of ▇▇▇▇▇▇, Seller or their respective Affiliatessuch Retained Subsidiaries (collectively, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including which shall include the following:
(ia) all cash and Cash Equivalents, including cash equivalents on hand and in banks immediately prior to the Effective Time (except for any cash or Cash Equivalents residing in any collateral cash equivalents taken into account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions calculation of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(ivClosing Cash);
(vb) all bank accounts;
(c) all insurance policies and all claims, credits, causes of action or rights thereunder;
(d) all Intellectual Property Rights (other than (Athe Assigned IP Assets), including the Intellectual Property Rights set forth on Section 2.03(d) of the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual PropertyDisclosure Schedules;
(vie) all Software (other than the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(viAssigned Software);
(viif) all current IT Assets (other than the Assigned IT Assets);
(g) all books, records, files and prior insurance Contracts papers, whether in hard copy or electronic format, prepared in connection with this Agreement or the transactions contemplated hereby, and all minute books and corporate records of Seller and the Retained Subsidiaries;
(h) all rights of Seller or any nature with respect thereto, including all insurance proceeds received of the Retained Subsidiaries arising under the Transaction Documents or receivable thereunderthe transactions contemplated thereby;
(viiii) any Existing Litigation Right;
(j) all owned assets sold or leased desktop computers, laptops, tablets, mobile phones otherwise disposed of (without limiting Buyer’s rights for any breach of Section 5.01 of this Agreement) during the period from the date hereof until the Effective Time;
(k) all assets of the Business Benefit Plans (other than the Purchased Subsidiary Benefit Plans);
(l) the personnel records (including all human resources and similar assets primarily used by other records) of Seller or a Retained Subsidiary relating to employees of Seller or its Affiliates such Retained Subsidiary other than in relation to the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xixEmployees as contemplated by Section 2.02(o);
(xm) all assets Contracts, agreements or binding obligations to which Seller is party, including all of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate the Master Supply Agreements listed in Section 2.03(m) of Sellerthe Disclosure Schedule;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiiin) all claimsTax Assets, counterclaims, causes as well as any rights to Tax refunds or credits in respect of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Tax overpayments; and
(xvo) any real the other property or interest and assets described in real property other than Section 2.03(o) of the Transferred Real PropertyDisclosure Schedule.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a2.1 (Purchase and Sale of the Assets), and for the avoidance of doubt, Seller shall not sell to Buyer and Buyer shall not purchase from Seller, or assume any of Seller’s rights under, any of the following pursuant to this Agreement:
(a) any asset or agreement set forth on Schedule 2.2(a);
(b) any Dropped Premises or ROFR Premises, as applicable, and the Assets related thereto;
(c) the UST System(s) identified on Schedules 3.01 (a)(i) and 3.01(a)(ii) to the contraryEnvironmental Agreement;
(d) any Permit that is not held or assignable by Seller or necessary for the operation of the Purchased Premises, no Designated Purchaser shall purchase including, without limitation, any Permit regarding the sale or otherwise acquire ownership of alcoholic beverages and any Permit regarding the sale of lottery tickets or presence of gaming equipment;
(e) any asset located at a Purchased Premises or an Open Dealer Premises that is owned by a Contract Operator, Dealer or any other Third Party;
(f) any Non-Petroleum Products Inventory owned by a Contract Operator, Dealer or any other Third Party;
(g) any groundwater monitoring w▇▇▇▇ or other environmental equipment at the Purchased Premises on the Closing Date, or installed after the Closing Date by Seller pursuant to Section 6.05 of the Environmental Agreement;
(h) any automatic teller machines, back office computer equipment and telecommunication equipment at the Purchased Premises, including satellite communications equipment;
(i) any software programs that track sales information at the Purchased Premises or that monitor USTs and Refined Petroleum Products Inventory; and
(j) any right, title and or interest in or to any assetslogo, rights or properties of ▇▇▇trade name, trademark, service m▇▇▇, Seller house m▇▇▇, domain name, web site or their respective Affiliatescompany name to the extent it contains or consists of the word “Shell”, regardless “SOPUS”, “Select”, “Shell Rapid Lube”, “Pennzoil” or “Quaker State” or the “Shell”, “SOPUS”, “Select”, “Shell Rapid Lube”, “Pennzoil” or “Quaker State” emblem or any other emblem, logo or other m▇▇▇ in which “Shell”, “SOPUS”, “Select”, “Pennzoil” or “Quaker State” or any of kindthem appears in translational or transliteral form or any third party logo, description trade name, trademark, service m▇▇▇, house m▇▇▇, domain name, web site or location or whether tangible or intangible, real, personal or mixed, except for company name used in connection with the Purchased Assets Premises (rights, if any, to use the “Shell” marks/names being granted pursuant to, and subject to the conditions of the Refiner-Supplier Development Agreement). The items listed in Section 2.2(a)-(j) being collectively referred to herein as the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate . Title to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except Excluded Assets is not being transferred to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts Buyer pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) this Agreement or the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Propertytransactions contemplated herein.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Tesoro Corp /New/)
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.01(a) to 2.1 or elsewhere in this Agreement, the contraryfollowing excluded assets of the Sellers (collectively, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), without duplication, are not part of the sale and purchase contemplated hereunder, are excluded from the Acquired Assets and shall remain the property of the Sellers after the Closing:
(a) the Pension Plan;
(b) the related-party receivables (including excess tax distributions and management fees, and other such receivables between Sellers and D▇▇▇▇ Family Enterprises, LLC) of the following:Sellers;
(c) all Trade Accounts Receivable of the Sellers that are aged more than 12 months at the Effective Date (the “Aged Receivables”);
(d) all minute books, stock records, and corporate seals of the Sellers;
(e) the shares of equity securities and partnership interests of the Sellers;
(f) all insurance policies and rights thereunder (except for the Kaiser medical insurance policy included in the Acquired Assets and any other policies to the extent so provided in Section 4.20);
(g) all of the agreements, contracts, leases, consensual obligations, promises or undertakings of the Sellers other than the Assumed Seller Contracts, with such other contracts being listed in Section 2.2(g) of the Disclosure Letter;
(h) all personnel records and other records that the Sellers are required by law or need to retain in their possession;
(i) all cash claims for refund of Taxes and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationother governmental charges of whatever nature;
(iij) any all rights in connection with and all Accounts Receivableassets of the Employee Benefit Plans;
(iiik) any Contracts used in all rights of the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its AffiliatesSellers under this Agreement;
(ivl) except to personal items of the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii)employees, any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entityshareholders, including Contracts described on Schedule 2.01(b)(iv)partners, officers and directors of Sellers;
(vm) all Intellectual any monthly rental payments from the Investment Property other than received by Sellers prior to Closing and relating to periods prior to Closing;
(An) the Transferred Intellectual PropertyB▇▇▇▇ Agreement;
(o) delinquent rent payable to Sellers, and (B) the Additional Assigned Intellectual or either of them, in respect to Investment Real Property;
(vip) the machinery, equipment, mechanical property and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)assets expressly designated in Section 2.2 of the Disclosure Letter;
(viiq) all current and prior insurance Contracts and all rights prorated portion (prorated as of the Effective Date) of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than credit card subsidy from the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit American Express Company with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world Southern Saw’s payment arrangements with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)COSTCO Wholesale Corporation; and
(xvr) any real property or interest all assets not enumerated in real property other than the Transferred Real PropertySection 2.1.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contraryThe Purchased Assets shall not include, no Designated Purchaser and Seller shall not Transfer, and Buyer shall not purchase or otherwise acquire acquire, any right, title and or interest in or to any assetsof the following properties and assets (collectively, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “"Excluded Assets”), including the following:"):
(i) all any cash and Cash Equivalentscash equivalents or similar types of investments owned by Seller, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationcertificates of deposit, treasury bills and other marketable securities;
(ii) any the certificate of formation, Taxpayer and all Accounts Receivableother identification numbers, minute and limited liability company interest record books and the company seals of Seller;
(iii) any Contracts used in the Triage Business that relate to the divisionIntellectual Property not listed on Annex 5, including any trademarks, corporate officenames, overhead trade names, logos, domain names, or back-office functions of Seller any variation thereof, and its Affiliatesany rights or interests therein and the goodwill associated therewith incorporating the name "Westinghouse," the "Circle W" logo ▇▇▇▇, the slogan "You can be sure. ... if it's Westinghouse" or "Washington," or any abbreviation thereof;
(iv) the WEC Technology (as defined in the Teaming Agreement), except to the extent included in that Buyer shall have the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts right to use such WEC Technology pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)the assumption agreement contemplated by Section 5.16;
(v) all Intellectual Property other than (A) any items of finished goods Inventory that are sold by Seller in the Transferred Intellectual Property, and (B) Ordinary Course of Business of the Additional Assigned Intellectual PropertyDivision after the date of this Agreement;
(vi) the machineryany rights to any refunds, equipmentand any deposits of Seller with any Governmental Authority, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)relating to Taxes;
(vii) all current the properties and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunderassets described in Annex 6;
(viii) all owned or leased desktop computersbooks, laptopsrecords, tablets, mobile phones manuals and similar assets primarily used by employees other materials that (A) originate from the corporate headquarters of Seller and set forth accounting, financial, personnel or its Affiliates other corporate policies applicable to substantially all the operations of Seller, (B) are held for use primarily in connection with any Excluded Liability, (C) are at any location other than the Transferred Employees;Cheswick Facility or the Mount Pleasant Facility and do not relate substantially to the Business or (D) are the subject of Section 5.17; and
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual PropertySeller under, and any funds and all corresponding rights that have beenproperty held in trust or any other funding vehicle pursuant to, now or hereafter may be secured throughout the world with respect to any Intellectual Property) insurance contract providing funding for, any Employee Plan, except to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets provided pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property.ARTICLE VI. 2.2
Appears in 1 contract
Sources: Asset Purchase Agreement (Washington Group International Inc)
Excluded Assets. Notwithstanding anything in Section 2.01(aIt is expressly understood and agreed that the Assets shall not include the following (each, an "Excluded Asset"):
(a) Except to the contraryextent expressly transferred pursuant to the provisions of Sections 1.2(a) through (l), no Designated Purchaser shall purchase inclusive, all assets, rights, properties, claims, contracts and business of any Asset Seller that, after giving effect to the services to be provided to, and other rights of, Buyer under the Buyer License Agreement and the Transition Agreements, are not necessary to conduct the Analytical Instruments Business as currently conducted;
(b) The capital stock of all direct or otherwise acquire indirect subsidiaries and affiliates of Seller other than the Transferred Subsidiaries;
(c) Cash and cash equivalents or similar type investments, bank accounts, certificates of deposit, Treasury bills and other marketable securities of the Asset Sellers;
(d) All real property and leasehold interests in real property of the Asset Sellers other than the Plants and the Equipment;
(e) Any refunds or credits with respect to any Taxes paid or incurred by the Asset Sellers (plus any related interest received from the relevant taxing authority);
(f) Each Asset Seller's right, title and interest in and to the contracts listed on Section 1.2(g)(i) of the Seller Schedule;
(g) Any Intellectual Property of the Asset Sellers (other than the Intellectual Property expressly set forth, summarized and/or described in Section 1.2(a) hereof or to any assets, rights or properties expressly described in Section 1.2(a) of ▇▇▇▇▇▇, the Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets Schedule);
(the “Excluded Assets”)h) The real property, including all buildings, structures and other improvements situated thereon, and other assets listed in Section 1.3(h) of the following:Seller Schedule;
(i) all cash and Cash EquivalentsOther than claims under insurance policies in respect of Assets that are lost, including any cash damaged or Cash Equivalents residing destroyed or Assumed Liabilities that are incurred, in any collateral account securing any obligation whole or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate part, prior to the divisionClosing, corporate officeall right, overhead or back-office functions title and interest of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) in any insurance policies relating to the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts Analytical Instruments Business and all rights of any nature Asset Seller to insurance claims and proceeds with respect thereto, including all insurance proceeds received to or receivable thereunderrelating to (i) occurrences prior to the Closing with respect to the operation of the Analytical Instruments Business and (ii) the Excluded Assets and Excluded Liabilities;
(viiij) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Any foreign currency agreements to which any Asset Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)a party; and
(xvk) All rights with respect to intercompany receivables, notes or loans between any real property or interest in real property other than of the Transferred Real PropertySubsidiaries, on the one hand, and Seller and its other subsidiaries (excluding Transferred Subsidiaries), on the other hand, except as listed in Section 1.3(k) of the Seller Schedule and except for trade payables or receivables relating to the provision of goods and services to or by the Analytical Instruments Business in the ordinary course of business of the Analytical Instruments Business consistent with past practice and custom ("Ordinary Course of Business").
Appears in 1 contract
Sources: Purchase Agreement (Pe Corp)
Excluded Assets. Notwithstanding anything contained in Section 2.01(a) 2.1 to the contrary, no Designated Purchaser the Sellers are not selling, and the term “Transferred Assets” shall purchase or otherwise acquire any rightexpressly exclude the following assets of the Asset Sellers, title and interest in or to any assetsall of which shall be retained by the Asset Sellers (collectively, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”):
(a) all of the Asset Sellers’ cash and cash equivalents (but not cash or cash equivalents in accounts of the SLP Subsidiary);
(b) the Asset Sellers’ corporate books and records of internal corporate proceedings, tax records, work papers and books and records that the Asset Sellers are required by Law to retain (other than those relating to the SLP Subsidiary);
(c) all rights in the following names and marks and any variation or derivation thereof: Goodyear, Continental or Veyance;
(d) all of the Asset Sellers’ bank accounts (but not the bank accounts of the SLP Subsidiary);
(e) all accounting records (including records relating to Taxes) and internal reports relating to the following:business activities of the Asset Sellers other than the Business (and other than those of the SLP Subsidiary);
(f) any interest in or right to any refund of (or credit with respect to) Taxes that are Excluded Liabilities or for which the Asset Sellers are otherwise responsible pursuant to this Agreement;
(g) any insurance policies not held by the SLP Subsidiary and rights, claims, or causes of action thereunder other than those specified in Section 2.1(i);
(h) except as specifically provided in Section 5.6, any assets relating to any Employee Plan of the Asset Sellers;
(i) all cash rights, claims and Cash Equivalents, including causes of action relating to any cash Excluded Asset or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationExcluded Liability;
(iij) shares of any and all Accounts ReceivableSubsidiary or Affiliates of Sellers other than the shares of the SLP Subsidiary;
(iiik) any Contracts used in the Triage Business that relate to equipment located, as of the divisiondate hereof, corporate office, overhead or back-office functions on the second floor of Seller and its Affiliates;
the Fairlawn Facility (iv) except to other than the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described equipment set forth on Schedule 2.01(b)(iv2.1(b));
(vl) all Intellectual Property other than (A) rights of the Transferred Intellectual Property, Sellers under this Agreement and (B) the Additional Assigned Intellectual PropertyAncillary Agreements;
(vim) any asset that relates solely to the Continental air springs business; and
(n) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii2.2(n);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property.
Appears in 1 contract
Sources: Asset and Share Purchase Agreement (Enpro Industries, Inc)
Excluded Assets. Notwithstanding anything The Purchased Assets shall include only those assets and interests specifically listed in Section 2.01(a) to the contrary, no Designated Purchaser 1.1 above and shall purchase or otherwise acquire any in all events exclude all right, title and or interest of any of Sellers in or to any assetsof the following (collectively, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:):
(ia) all cash and cash equivalents of Sellers, other than Restaurant P▇▇▇▇ Cash Equivalentsand Large Party Deposits;
(b) any bank accounts of Sellers;
(c) the Purchase Price and Sellers’ rights under this Agreement;
(d) any Excluded Contracts, including any cash refund, rebate, credit or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate payment due to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable Sellers thereunder;
(viiie) all owned or leased desktop computersany Claims, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees(i) as set forth in Section 1.1(j) and Section 1.1(l), and (ii) those arising post-Closing with respect to or in connection with any Purchased Asset;
(ixf) all securities, whether capital stock or debt, and other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix)ownership interests issued by any of Sellers;
(xg) all assets of any Section 401(k) or other Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to ;
(h) all intercompany claims by any Seller against any other Seller or any Subsidiary or other Affiliate of any Seller;
(xii) subject any item expressly excluded pursuant to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax PeriodSection 1.1 above;
(xiij) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);[Intentionally Omitted]
(xiiik) all claimsany premium refunds (including, counterclaimswithout limitation, causes for any prepaid premiums) of actionSellers arising from their insurance policies on account of reduction in workforce, choses in action, rights of recoveryliability coverage, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)like; and
(xvl) except only as provided in Sections 1.1(f) and 1.1(l), all rights and Claims to deposits (including, without limitation, any real property or interest in real property cash collateral for any obligation of Sellers and all Post-Petition deposits made by Sellers), credits, prepaid amounts (including, without limitation, as to Taxes), refunds, reimbursements, vendor and other rebates, set-offs and similar rights and claims of Sellers, including, without limitation, any of the foregoing relating to any Contract other than the Transferred Real PropertyPurchased Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (ONE Group Hospitality, Inc.)
Excluded Assets. Notwithstanding anything The Transferred Assets shall include only those assets included in Section 2.01(a) 2.1, it being the intention of the parties that all other rights, properties and assets of the Seller and its Subsidiaries are to be retained and not sold or assigned to Purchaser, including, without limitation, the contraryrights, no Designated Purchaser shall purchase properties and assets listed or otherwise acquire any rightdescribed below (collectively, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”)):
(a) all cash, including cash equivalents, marketable securities and intercompany accounts receivable of Seller or its Subsidiaries;
(b) all rights in connection with, and assets of the following:employee benefit plans (the “Benefit Plans”) of Seller and its Subsidiaries;
(c) all minute books, stock books, Tax Returns and similar corporate records of Seller and its Subsidiaries;
(d) all employees of the Seller and its Subsidiaries, except as set forth in Section 5.7 hereof;
(e) all claims, counterclaims and rights of offset against Liabilities to the extent not assumed by Purchaser;
(f) all rights of Seller under this Agreement and the Transaction Documents;
(g) the shares of capital stock of the Seller held in treasury;
(h) the shares of capital stock of the Seller’s Subsidiaries;
(i) all cash insurance policies and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationrights thereunder;
(iij) any all Contracts of the Seller other than the Assumed Contracts and all Accounts Receivable;
the Assumed Leases (iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv“Excluded Contracts”);
(vk) all Intellectual Property personnel records and other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Propertyrecords that Seller or any of its Subsidiaries are required by law to retain in its possession;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(viil) all current claims for refund of Taxes and prior insurance Contracts and all rights other governmental charges of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)whatever nature; and
(xvm) all information assets or other property, including any real property or interest in real property Intellectual Property, owned by a party other than the Transferred Real PropertySeller or any of its Subsidiaries.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in the terms of Section 2.01(a) 2.1, no member of the Seller Group will sell, convey, assign, transfer or deliver to the contraryPurchaser, no Designated and the Purchaser shall will not purchase or otherwise acquire any rightacquire, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets do not include, any assets other than the Purchased Assets, including any of the following assets (the “Excluded Assets”)):
(a) all Cash and Cash Equivalents, bank deposits, investment accounts, lockboxes, certificates of deposit, marketable securities, bank accounts, corporate credit cards and other similar cash items of the Seller Group;
(b) all inventory as of the Closing Date, to the extent used or held for use primarily in the ICU Acquired Business, including all finished goods, work in process and raw materials, to the following:extent not included in the Working Capital;
(c) all notes and accounts receivable, including all trade accounts receivable and other rights to payment from customers, to the extent (i) not included in the Closing Date Flush Working Capital (as determined in accordance with Section 2.6) or (ii) related to the ICU Acquired Business;
(d) all minute books, records, stock ledgers, Tax records, personnel records and all other materials (other than the Flush Books and Records that constitute Purchased Assets under Section 2.1(i));
(e) the shares of the capital stock of any member of the Seller Group and all of the Seller’s or any other Seller Group member’s ownership interest in any Subsidiary or other Person;
(f) all insurance policies, binders and claims and rights thereunder and proceeds thereof;
(g) all Contracts of the Seller Group, but excluding (i) the Included Contracts and (ii) the portion of any Shared Contract that constitutes a Purchased Asset under Section 2.1(c);
(h) all machinery, equipment, furniture and other items of tangible personal property used or held for use by the Seller Group that does not constitute a Purchased Asset under Section 2.1(e);
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in goodwill of the Triage Business Seller Group that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the does not constitute a Purchased Assets Asset under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv2.1(g);
(vj) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(viGovernmental Approvals that do not constitute a Purchased Asset under Section 2.1(h);
(viik) all current rights to refunds, credits or similar benefits relating to Taxes and prior insurance Contracts and all rights other governmental charges of any nature with respect theretowhatever nature, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described except as provided in Section 2.01(a)(xviii) or Section 2.01(a)(xix2.1(j);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xil) subject to the provisions express terms of Article VIIIthe IP License Agreement, any right to any refund or credit all Intellectual Property rights of the Seller Group, including all of the Seller Group’s rights in the Hyprotek License (whether with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in ML Acquired Business or the manufacturing of the Products set forth on Schedule 2.01(b)(xiiICU Acquired Business);
(xiiim) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of arising under any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi)Excluded Liability;
(xivn) all cells lines assets and other than those described in Section 2.01(a)(xx), rights relating to the ICU Acquired Business or the ML Acquired Business sold or otherwise transferred or disposed of during the period from the date of this Agreement through and including the remaining portion Closing Date, in any event in accordance with the provisions of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Stock Purchase Agreement or this Agreement; and
(xvo) all rights of the Seller Group under this Agreement or any real property or interest in real property other than of the Transferred Real PropertyAncillary Agreements to which any member of the Seller Group is a party.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.01(a1.2, the parties expressly understand and agree that the Purchased Assets shall not include, and neither Seller nor any of its Subsidiaries (other than an Acquired Company) is selling, assigning, transferring or conveying to Purchaser pursuant to Section 1.2 any right to or interest in, any of the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any following assets, rights or properties of ▇▇▇▇▇▇properties, Seller or their respective Affiliatesrights, regardless of kindContracts and claims, description or location or whether tangible or intangible, real, personal or mixedmixed (except with respect to assets sold, except for assigned, transferred or conveyed with the Purchased Assets Acquired Companies) (collectively, the “Excluded Assets”), including the following:"EXCLUDED ASSETS"):
(ia) all cash, cash and Cash Equivalentsequivalents, including bank deposits, investment accounts, lockboxes, certificates of deposit, marketable securities or similar cash items, of Seller or any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationof its Subsidiaries (other than the Acquired Companies);
(iib) subject to Sections 1.2 and 10.1, any Seller Employee Benefit Plan, any trusts, insurance arrangements or other assets held pursuant to, or set aside to fund the obligations of Seller or its Subsidiaries under, any such Seller Employee Benefit Plan, any data and records (or copies thereof) required to administer the benefits of Acquired Company Employees and Business Employees under any Seller Employee Benefit Plan and, except as set forth in Section 1.4(a)(ii), the retention agreements with the Business Employees and Acquired Company Employees listed on Schedule 1.3(b) (the "RETENTION AGREEMENTS");
(c) any and all Accounts Receivableinsurance policies, binders and claims and rights thereunder and the proceeds thereof and all prepaid insurance premiums;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xid) subject to the provisions Section 7.7, all of Article VIIISeller's right, title and interest in any right to name, Trademark, trade dress, internet address, trade name, service ▇▇▇▇ or logo, or any refund or credit with respect to Taxes relating to derivation of any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth foregoing, together with all of the goodwill represented thereby, or pertaining thereto in each case listed on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property.1.3
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Wix Filtration Media Specialists, Inc.)
Excluded Assets. Notwithstanding anything Section 1.05(a) or any other provision hereof, the SpinCo Assets will not in Section 2.01(a) to any event include any of the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased following Assets (the “Excluded Assets”), including the following:):
(i) all cash Assets in respect of any and Cash Equivalents, including any cash or Cash Equivalents residing all Compensation and Benefit Plans and all Assets in any collateral account securing any obligation or contingent obligationrespect of all other compensation and benefit plans sponsored by the Citadel Group;
(ii) all financial and Tax records relating to the SpinCo Business that form part of the general ledger of Citadel or any of its Subsidiaries (other than the members of the SpinCo Group), any work papers of Citadel’s auditors and all Accounts Receivableany other Tax records (including accounting records) of Citadel or any of its Subsidiaries (other than the members of the SpinCo Group); provided that Citadel will provide to SpinCo upon written request, copies of any portions of such financial and Tax records that relate to the SpinCo Entities, the SpinCo Assets, the SpinCo Liabilities or the SpinCo Business;
(iii) other than rights to enforce the provisions of any confidentiality, non-disclosure or other similar Contracts used in the Triage Business that relate to the divisionextent related to the SpinCo Business or as provided in Section 1.05(a) and the corresponding sections of the Citadel Disclosure Letter, corporate officeall records prepared by or on behalf of Citadel or its Subsidiaries relating to the negotiation of the Transactions and all records prepared by or on behalf of Citadel or its Subsidiaries in connection with the potential divestiture of all or a part of the SpinCo Business or any other business or Asset of Citadel or its Subsidiaries, overhead including (A) proposals received from third parties and analyses relating to such transactions and (B) without limiting Section 7.14, confidential communications with legal counsel representing Citadel or backits Affiliates and the right to assert the attorney-office functions of Seller and its Affiliatesclient privilege with respect thereto;
(iv) except to all Contracts of either Citadel or SpinCo or any member of their respective Groups other than the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)SpinCo Contracts;
(v) all Intellectual Property rights of Citadel or its Affiliates (other than (Amembers of the SpinCo Group) under this Agreement or any Transitional Agreement and the Transferred Intellectual Propertycertificates, instruments and (B) the Additional Assigned Intellectual Property;Transfer Documents delivered in connection therewith; and
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights Assets that have been, now are expressly contemplated by this Agreement or hereafter may any Transitional Agreement as Assets to be secured throughout retained by Citadel or any other member of the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
Citadel Group (xiv) all cells lines other than those described in Section 2.01(a)(xxSpinCo and its Subsidiaries), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property.
Appears in 1 contract
Sources: Transaction Agreement (Capital Product Partners L.P.)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to From and after the contraryClosing Date, no Designated Purchaser the Vendor Group shall purchase or otherwise acquire any retain all right, title and interest in and to, and there shall be excluded from the purchase and sale, conveyance, assignment, or transfer to any assetsthe Purchaser Group hereunder, rights or properties of ▇▇▇▇▇▇and the Assets shall exclude the following (collectively, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”):
(a) subject to Section 4.3(b), including all refundable Taxes (or amounts credited against current cash Taxes otherwise due and payable in lieu of a refund) and interest thereon refundable to the following:Vendor Group or the Subsidiaries on account of the Purchased Business in respect of any Pre-Closing Tax Period (“Vendor Refundable Taxes”);
(b) the corporate seals, organizational documents, minute books or other records relating to the organization as a legal entity of the Vendor Group or any other Person other than the Subsidiaries;
(c) all outstanding equity interests in the Vendor Group, other than the equity interests of the Subsidiaries;
(d) all financial statements, Tax returns and other Tax records and related information of the Vendor or any other Person other than the Subsidiaries;
(e) any fixed assets other than those set forth on Section 2.1(b) of the Disclosure Letter;
(f) all rights of the Vendor Group in respect of any employment or contractor agreement other than employment agreements made with Transferred Personnel;
(g) other than as may be agreed in writing by the parties pursuant to the Transition Services Agreement, all employee benefit plans and assets attributable thereto;
(h) all Benefit Plans maintained by the Vendor Group and all rights thereunder;
(i) all cash insurance policies owned and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationmaintained by the Vendor Group and all rights thereunder;
(iij) any and all Accounts Receivablethe Retained Business;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (Ak) the Transferred Intellectual Property, Retained Software and (B) the Additional Assigned all Retained Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(viil) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing contracts of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights Vendor Group that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or are not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx)Contracts, including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Specified Contracts; and
(xvm) any real property all claims of the Vendor Group against third parties related to the above assets, whether choate or interest in real property other than the Transferred Real Propertyinchoate, known, or unknown, contingent or non-contingent.
Appears in 1 contract
Sources: Asset Purchase Agreement (Synchronoss Technologies Inc)
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.01(a) to the contrary2.1(a), no Designated Purchaser shall purchase will not purchase, assume or otherwise acquire any rightassets of the HSBC Sellers or any of their respective Affiliates that are not expressly included in the Purchased Assets (collectively, title and interest in or to any the “Excluded Assets”), including, by way of example only, the following assets, rights properties, rights, Contracts and claims, wherever located, whether tangible or properties intangible, real, personal or mixed:
(1) all assets, properties, rights, Contracts and claims, including Loans and extensions of ▇▇▇▇▇▇credit in process, Seller or their respective Affiliateswherever located, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for primarily related to the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationRetained Businesses;
(ii2) any other than the Real Property Leases and ATM Real Property Leases, all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the divisionleases, corporate officesubleases, overhead licenses or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any other Contracts pursuant to which rights in the HSBC Sellers or any of their respective Affiliates leases, subleases or licenses real property;
(3) all Nonperforming Loans and Loans to Retained Employees;
(4) the Excluded Contracts;
(5) all assets related to employee benefit arrangements of any HSBC Seller or Assignor or any of their respective Affiliates, including the Employee Plans;
(6) all Intellectual Property are granted of the HSBC Sellers and their respective Affiliates, including all right, title and interest in and to all proprietary or licensed software, systems or programs or computer software agreements of the HSBC Sellers and their respective Affiliates, including any rights (ownership, licensed or otherwise) to any Asset Seller Entityof the HSBC Entity Names and any other Trademarks of the HSBC Sellers or their respective Affiliates, including Contracts described those identified on Schedule 2.01(b)(iv2.1(b)(6);
(v7) all Intellectual Property books, records and other than (A) data that cannot, without unreasonable effort or expense, be separated from books and records maintained by the HSBC Sellers or their respective Affiliates in connection with the Retained Businesses or to the extent that such books, records and other data relate to Excluded Assets, Excluded Liabilities or Business Employees or Affiliated Employees who do not become Transferred Intellectual PropertyBusiness Employees, and (B) all personnel files and records; provided that, to the Additional Assigned Intellectual Propertyextent permitted under, and in accordance with, Section 7.1(b), Assignor shall use commercially reasonable efforts to cause the HSBC Sellers to provide Purchaser with access to any such books, records and other data for which the above-referenced separation would cause the HSBC Sellers to incur unreasonable effort or expense;
(vi) the machinery8) all licenses, equipmentcharters, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing legal entities of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present HSBC Sellers or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)their respective Affiliates; and
(xv9) any real property or interest in real property other than the Transferred Real Propertyall Credit Card Accounts and Receivables.
Appears in 1 contract
Sources: Assignment, Purchase and Assumption Agreement (Financial Institutions Inc)
Excluded Assets. Notwithstanding It is expressly understood and agreed that, notwithstanding anything in Section 2.01(a) to the contrarycontrary set forth in this Agreement or in any exhibit or schedule thereto, no Designated Purchaser shall purchase other than the Purchased Assets, Buyer is not purchasing or otherwise acquire acquiring, and Seller is not selling or assigning, any rightother assets, title rights, properties, claims, contracts and interest in or to business of Seller that is not part of the Business, and that any assets, rights or properties rights, properties, claims, contracts and business of ▇▇▇▇▇▇Seller, Seller or their respective Affiliatesas listed below, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for shall be excluded from the Purchased Assets (the “Excluded Assets”), including the following:):
(i) all any cash, cash equivalents, marketable securities or similar type investments, bank accounts, securities and Cash Equivalentsbrokerage accounts, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationcertificates of deposit and checks (that is not for the avoidance of doubt Closing Cash);
(ii) any and all Accounts ReceivableContracts, other than the Assumed Contracts;
(iii) any Contracts used in and all Intellectual Property, other than the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its AffiliatesAcquired IP;
(iv) except all insurance policies and all insurance proceeds received or receivable to the extent included in the Purchased Assets not purchased under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv2.1(a)(xvii);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Propertyrights that accrue or will accrue to Seller under this Agreement or any exhibit or schedule thereto;
(vi) the machinery, equipment, mechanical all refunds or credits of Taxes and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)other Tax assets;
(vii) all current organizational documents, minute books, corporate seals, Tax records, books and prior insurance Contracts records and all rights other similar documents of Seller or any nature with respect theretoof its Affiliates, including all insurance proceeds received or receivable thereunderother than books and records transferred to Buyer pursuant to Section 2.1(a)(a)(ix);
(viii) all owned or leased desktop computerstangible personal property, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred EmployeesTangible Personal Property;
(ix) all owned and leased real property and other Information Technology Assets interests in real property, other than those described in the Yehud Real Property and the Real Property Leases transferred pursuant to Section 2.01(a)(xviii) or Section 2.01(a)(xix)2.1;
(x) all assets securities or other equity interests of any Seller Plan Person owned or held by the Seller, other than the Subsidiary Shares and, for the avoidance of doubt, equity interests of any similar benefit plan, program Person held or arrangement that is maintained or contributed to owned by any Seller or Affiliate of Sellerthe Acquired Subsidiaries;
(xi) (i) all attorney-client privilege and attorney work-product protection of the Seller as a result of legal counsel representing the Seller in connection with the transactions contemplated by this Agreement or any exhibit or schedule thereto, (ii) all documents subject to the provisions attorney-client privilege or work-product protection described in clause (i) of Article VIIIthis paragraph, and (iii) all documents maintained by the Seller in connection with the transactions contemplated by this Agreement or in any right to any refund exhibit or credit with respect to Taxes relating to any Pre-Closing Tax Period;schedule thereto; and
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all actions, claims, counterclaims, causes of action, choses in action, rights of recovery, recovery and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect setoff relating to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) Excluded Assets or not otherwise included in Purchased Assets under Section 2.01(a)(xviany Excluded Liabilities (“Retained Claims”);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Magal Security Systems LTD)
Excluded Assets. Notwithstanding anything The following assets and property shall be retained by the Sellers and Seller Affiliates, as the case may be, and shall not constitute Acquired Assets, regardless of whether any of them relates in Section 2.01(aany manner to or is used in the Business (collectively, the "EXCLUDED ASSETS"):
(a) all of the assets, properties, goodwill and rights of the Sellers or any Seller Affiliate of every kind and nature, real, personal and mixed, tangible and intangible, that are not owned, used or held for use by the Sellers, the Seller Parent or any Seller Affiliate primarily in connection with the operation of the Business;
(b) all insurance policies, contracts, coverages or bonds owned by the Sellers or any Seller Affiliate, including, without limitation, entitlements to the contraryreturn of premiums on cancellation of policies, no Designated Purchaser shall purchase and all rights of the Sellers or otherwise acquire any Seller Affiliate of every nature and description under or arising out of such insurance policies;
(c) all accounts receivable, notes receivable, credits, refunds, prepaid expenses, deferred charges, advance payments, security deposits and prepaid items, other than any of the foregoing (i) securing open customer orders which are included in the Assigned Contracts or (ii) which are listed on Schedules 1.1(j) or 1.1(k);
(d) all cash, negotiable securities, certificates of deposit, commercial paper, treasury bills and treasury notes and all other marketable securities, bonds, bank accounts, lock boxes, letters of credit and other cash equivalents held on the Closing Date;
(e) all real property owned by the Sellers or any Seller Affiliate and all plants, buildings and improvements thereon and all right, title and interest of the Sellers or any Seller Affiliate with respect to real property leasehold interests and rights thereunder;
(f) all employment, consulting, independent contractor and similar Contracts to which either of the Sellers or any Seller Affiliate is a party or is bound, other than any Contracts or agreements with the Independent Contractors set forth in or Schedule 3(r)(ii) to any the extent assignable and accepted by the Buyer after the Closing Date;
(g) those assets, rights or properties if any, set forth in Section 1.2(g) of ▇▇▇▇▇▇the Disclosure Schedule;
(h) account books of original entry, Seller or their respective Affiliatesgeneral ledgers, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:tax returns and other documents and records directly relating to Taxes;
(i) all cash the corporate records consisting of director and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationstockholder minutes and proceedings;
(iij) all rights of the Sellers or the Seller Parent under this Agreement and the agreements and instruments executed and delivered to the Sellers or the Seller Parent by the Buyer or the Buyer Parent pursuant to this Agreement or any and all Accounts ReceivableRelated Agreement;
(iiik) all rights of the Sellers or the Seller Parent to any Contracts used in the Triage Business that relate Tax refunds or claims for Tax refunds other than those relating to the division, corporate office, overhead Acquired Assets or back-office functions of Seller and its Affiliatesthe Business as conducted after the Closing Date;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiiil) all claims, counterclaimsdemands, causes of action, choses in action, rights of recovery, rights of set off and rights of set-off recoupment of any kind (including all damages the Sellers and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights each Seller Affiliate that have been, now or hereafter may be secured throughout the world with respect relate exclusively to any Intellectual Property) to of the extent related to other Excluded Assets or any of the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Excluded Liabilities; and
(xvm) all guarantees, warranties, indemnities and similar rights in favor of the Sellers or any real property Seller Affiliate that relate exclusively to any of the other Excluded Assets or interest in real property other than any of the Transferred Real PropertyExcluded Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Youthstream Media Networks Inc)
Excluded Assets. Notwithstanding anything in Section 2.01(a) Anything to the contrarycontrary notwithstanding, no Designated Purchaser shall purchase is not purchasing pursuant to this Agreement or otherwise acquire any of the transactions contemplated hereby any right, title and or interest in or to any other assets, rights or properties properties, rights, title and interests of ▇▇▇▇▇▇the Seller and its affiliates (other than the Properties), Seller or their respective Affiliatesincluding, regardless without limitation, any of kindthe following (collectively, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”)):
1.2.1. all furniture, including the following:
(i) all cash and Cash Equivalentsfixtures, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the divisionfurnishings, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipmentautomobiles, mechanical and trucks, spare parts, supplies, testing equipment, computer hardware (including servers and network infrastructure), tools, toolingquality control equipment and gauges and other tangible personal property owned and/or used by the Seller or any of its affiliates, jigswhether or not located in the Buildings or on the Land;
1.2.2. all inventory of the Seller and its affiliates, moldsincluding any active pharmaceutical ingredient, dies, production other supplies, samplesworks-in-progress and finished goods inventory, media and fixtures described whether or not located in the Buildings or on Schedule 2.01(b)(vi)the Land;
1.2.3. all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, software, technical databases, and mask works; (ii) trademarks, service marks, trade dress, logos, trade names and other source identifiers, domain names and URLs and similar rights and any goodwill associated therewith; (iii) rights associated with trade secrets, know how, inventions, invention disclosures, methods, processes, protocols, specifications, techniques and other forms of technology; (iv) patents and industrial property rights; (v) other proprietary rights in intellectual property of every kind and nature; (vi) rights of publicity; and (vii) all current registrations, renewals, extensions, combinations, statutory invention registrations, provisional patent applications, continuation patent applications, continuations-in-part patent applications, divisional patent applications, international PCT applications, or reissues of, and prior insurance Contracts applications for, any of the rights referred to in clauses (i) through (vi) (whether or not in tangible form and including all tangible embodiments of any of the foregoing, such as samples, studies and summaries), along with all rights to prosecute and perfect the same through administrative prosecution, registration, recordation or other administrative proceeding, and all causes of action and rights of any nature with respect theretoto sue or seek other remedies, including all insurance proceeds received post-grant review proceedings, arising from or receivable thereunderrelating to the foregoing;
(viii) 1.2.4. all owned permits, licenses, approvals, registrations, submissions and authorizations made to, received from or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used issued by employees of a governmental entity held by the Seller or any of its Affiliates affiliates, other than the Transferred EmployeesApprovals;
1.2.5. All (ixi) all records and lists pertaining to the Business (defined below) of the Seller and its affiliates or to past, present or prospective customers, suppliers, distributors or personnel of the Business, (ii) past, present or prospective product, business and marketing plans, sales literature and promotional literature relating to the Business, (iii) books, ledgers, files, reports, plans, drawings and operating records of every kind maintained by the Seller or any of its affiliates in connection with the Business, (iv) corporate charters, corporate seal, minute books, equity books, and other Information Technology Assets documents relating to the incorporation, organization, maintenance and existence of the Seller and its affiliates as corporations or other than those described in Section 2.01(a)(xviiilegal entities; and (v) or Section 2.01(a)(xixother books and records relating to the Business (including books and records relating to Taxes);
1.2.6. all goodwill and the going concern value of the business of the Seller and its affiliates (x) the “Business”), including Seller’s and its affiliates’ current business relationships and goodwill with customers and prospective customers and all assets operational know-how, service requirements, pricing and other information related to the development and maintenance of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of the Seller’s and its affiliates’ business relationships and all potential customer leads;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) 1.2.7. all claims, counterclaimsdefenses, causes of action, choses in action, rights of recoveryrecovery for reimbursement, contribution, refunds, indemnity or other similar payment recoverable by the Seller or any of its affiliates from or against any third party to the extent relating to any other Excluded Asset or the Business;
1.2.8. all insurance policies of the Seller or any of its affiliates;
1.2.9. all cash and rights cash equivalents of set-off of any kind (including all damages the Seller and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, its affiliates and any and all corresponding rights that have beenof the Seller and its affiliates in respect of current assets, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set off, rights of recoupment, deposits and other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)similar items; and
1.2.10. all rights which accrue or will accrue to the Seller or any of its affiliates under this Agreement or the Master Lease (xv) any real property or interest in real property other than the Transferred Real Propertydefined below).
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any All assets, properties, rights, contracts and claims, wherever located, whether tangible or intangible, real or personal, of Seller not included in the definition of Acquired Assets (collectively, the “Excluded Assets”) are retained by Seller, including:
(a) All books and records not constituting Business Records, including Seller’s charter, bylaws and similar organizational documents, minutes, stock records and similar documents;
(b) Except for the Acquired Cash, all Cash or cash equivalents, including any marketable or other securities, and accrued interest, dividends or other earnings thereon, wherever located, deposits of, and any rights or properties interests in, the cash management system of Seller and its Affiliates, bank accounts and lockboxes;
(c) All goodwill generated by, and associated with, Seller and the Business;
(d) All Accounts Receivable;
(e) All rights to and the use of the “▇▇▇▇▇▇▇ Rubbermaid” and “Calphalon” trade names and trademarks, Seller any derivation or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any combination thereof and all Accounts Receivable;
(iii) associated goodwill, and any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in other Intellectual Property are granted to any Asset Seller Entity, including Contracts not specifically described on Schedule 2.01(b)(ivin Section 1.1(d);
(vf) all Intellectual Property All rights of Seller under (i) any Contracts other than the Business Contracts and (Aii) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described Contracts listed on Schedule 2.01(b)(vi1.2(f);
(viig) all current and prior insurance All Contracts between Seller or any Affiliate of Seller, and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of intercompany receivables owed to Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xih) subject to Exhibit C of the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax PeriodContract noted in Schedule 4.8 as “*Contract Partially Retained by Seller”;
(xiii) the Registrations All assets used in connection with the manufacturing centralized management functions provided by or to Seller, including SAP;
(j) All Employee Benefit Plans and any trusts, insurance arrangements or other assets held pursuant to, or set aside to fund the obligations of Seller under, any such Employee Benefit Plans, other than as provided in Section 7.1;
(k) All insurance policies and all rights of Seller of every nature and description under or arising out of such insurance policies;
(l) All claims for and right to receive any deferred Tax asset or to receive any Tax refunds relating to the operation or ownership of the Products set forth Business or the Acquired Assets for any Tax period (or portion thereof) ending on or prior to the Closing Date, including any refunds or rebates of anti-dumping, countervailing or other customs duties, tariffs or charges relating to the operation or ownership of the Business or the Acquired Assets prior to the Closing Date;
(m) All application systems and software, including all computer software, programs and source disks, and related program documentation, tapes, manuals, forms, guides and other materials, computer hardware and other systems hardware and networking and communications assets, including servers, databases, backups and peripherals, except for those application systems and software items specifically listed on Schedule 2.01(b)(xii1.1(i);
(xiiin) all claimsSeller’s rights under this Agreement, counterclaims, causes of action, choses the other agreements and instruments executed and delivered in action, rights of recoveryconnection with this Agreement, and rights of set-off of any kind (including all damages and payments for past, present the transactions contemplated hereby or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)thereby; and
(xvo) Any claims of Seller or its Affiliates related to any real property or interest in real property other than the Transferred Real PropertyExcluded Asset.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary contained herein, no Designated Purchaser shall purchase or otherwise acquire any and all of the Seller's right, title and interest in or and to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets following assets (the “"Excluded Assets”)") shall be specifically excluded from, including and shall not constitute, the followingAcquired Company Assets:
(ia) Any and all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationassets related to the Seller Benefit Plans;
(iib) any Any and all Accounts Receivableloans and advances, if any, by Seller or its Subsidiaries to Seller or any of its Affiliates or otherwise to the Ocean Business;
(c) Any and all Intellectual Property, other than the Ocean Business Intellectual Property expressly included in subclause (iii) of Section 2.4(a) (including, as an Excluded Asset covered by this Section 2.5(c), the Intellectual Property listed in Section 2.5(c) of the Seller Disclosure Schedules);
(d) Any and all Contracts other than the Assigned Contracts;
(e) All owned and leased real property and interests in real property;
(f) Any and all refunds for credits against Excluded Taxes;
(g) Tax Returns and other books and records related to Taxes paid or payable by Seller or any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(ivi) except Any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not Relating to the extent Ocean Business, for all periods before and through the Closing, and (ii) any claims under insurance policies set forth on Section 2.5(h) of the Seller Disclosure Schedules;
(i) Any and all non‑transferrable Ocean Business Permits, provided however that Seller will comply with Section 2.4(a)(vii) with respect thereto; and
(j) Any and all other assets of Seller not specifically included in the Purchased Assets under Section 2.01(a)(v) Acquired Company Assets. The parties hereto acknowledge and agree that neither Purchaser nor any of its Affiliates will acquire or Section 2.01(a)(xviii)be permitted to retain any direct or indirect right, title and interest in any Contracts pursuant Excluded Assets. For the avoidance of doubt, no right, title and interest in and to which rights in the Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property2.5 are being acquired by Purchaser.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Ultrapetrol Bahamas LTD)
Excluded Assets. Notwithstanding anything in Section 2.01(a) any other provision of this Agreement to the contrary, no Designated Seller, the Seller Entities and their respective Affiliates will retain and not sell, transfer, assign or convey, and Purchaser shall purchase not acquire, any of the following assets and properties of Seller and the Seller Entities, or any asset that is not a Purchased Asset (collectively, the “Excluded Assets”):
(a) Any and all assets related to the Benefit Plans (other than with respect to the Benefit Plans assumed pursuant to Section 2.6(d));
(b) Any and all Intellectual Property Rights (including, as an Excluded Asset, the Seller Marks), other than the Business Intellectual Property and any Intellectual Property Rights granted to any of the Seller Entities to the extent in any of the Contracts transferred or assigned to Purchaser;
(c) Any and all Retained Technology (it being understood that Purchaser and its Affiliates may receive and retain copies of any Retained Technology to the extent that it is also Transferred Technology);
(d) Any and all Contracts and portions of Contracts (other than the Business Contracts) and including, as Excluded Assets, (i) any and all Contracts of Seller’s Market Intelligence and Index businesses that are unrelated to the Business, (ii) any and all Excluded Enterprise Agreements, (iii) all of the right and interest in and to the Intercompany Data Contracts other than the right and interest of the applicable Seller Entity (as described in Section 2.4(a)(vi)) and (iv) the Contracts set forth on Section 2.5(d) of the Seller Disclosure Schedules (the “Specified Excluded Contracts”);
(e) Any and all owned and leased real property and other interests in real property;
(f) Except as expressly included in Section 2.4(d), any and all Tangible Personal Property;
(g) Any and all Information Technology;
(h) Any and all prepaid Taxes by, or refunds, credits, overpayments or similar items or recoveries of or against any Tax of, Seller, the Seller Entities or any of their respective Affiliates, except, in each case, to the extent such items are taken into account as an asset in determining Net Working Capital;
(i) Any Seller Tax Returns and other books and records related to Taxes paid or payable by Seller, the Seller Entities or any of their respective Affiliates;
(j) Any and all Cash amounts, and any and all trade receivables, accounts receivable, current assets, prepaid expenses and security deposits (in each case, other than those of the Business as of immediately prior to the Closing to the extent included in the calculation of the Closing Date Net Working Capital);
(k) All books and records to the extent related to the Retained Claims;
(l) Any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements for all periods before, through and after the Closing, including any and all refunds and credits due or to become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies for all periods before, through and after the Closing;
(m) Subject to Section 2.4(h), any and all Permits;
(n) Any and all claims, rights, causes of action, defenses and rights of offset or counterclaim (in each case, in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) or settlement agreements, in each case at any time to the extent arising out of or related to any of the Excluded Assets or Retained Liabilities (including all rights and claims under any and all warranties extended by suppliers, vendors, contractors, manufacturers and licensors in favor of Seller or any of its Affiliates in relation to any Excluded Assets), and the right to retain all proceeds and monies therefrom (collectively, the “Retained Claims”);
(i) all attorney-client privilege and attorney work-product protection of Seller or associated with the Business as a result of legal counsel representing Seller or the Business in connection with the transactions contemplated by this Agreement or any of the Transaction Documents, (ii) all documents subject to the attorney-client privilege or work-product protection described in clause (i) of this Section 2.5(o) and (iii) all documents maintained by Seller in connection with the transactions contemplated by this Agreement or any of the Transaction Documents;
(p) Subject to Section 5.16, any and all Vendor Contracts that are Bundled, including the Contracts set forth on Section 2.5(p) of the Seller Disclosure Schedules (the “Bundled Vendor Contracts”); provided that the subject matter of such Bundled Vendor Contracts other than those for inbound data shall be provided by Seller to Purchaser pursuant to the Transition Services Agreement;
(q) Any and all assets set forth on Section 2.5(q) of the Seller Disclosure Schedules; and
(r) Any and all assets, business lines, properties, rights and claims of Seller, the Seller Entities or any of their respective Affiliates that are not Purchased Assets. The Parties hereto acknowledge and agree that, except as otherwise provided in this Agreement or in any other Transaction Document, neither Purchaser nor any of its Subsidiaries will acquire or be permitted to retain any direct or indirect right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrary, no Designated Purchaser shall purchase All assets of Parent or otherwise acquire any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business its Affiliates that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent are not included in the Purchased Assets as described under Section 2.01(a)(v2.01 and that are not assets of an Acquired Entity as of the Closing, shall be retained by Parent or such Affiliate, and are referred to herein collectively, as the “Excluded Assets.” Notwithstanding Section 2.01, “Excluded Assets” shall include:
(a) All cash or Section 2.01(a)(xviii), cash equivalents in hand or in bank accounts held by Parent or any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(ivAffiliate (other than Cash);
(vb) Other than as provided in Article 7 and other than pursuant to Section 2.01(n), all rights under Employee Benefit Plans of any EPD Group Member that is not an Acquired Entity and all assets, records and vendor arrangements associated with such Employee Benefit Plans, whether held by Parent or any of its Affiliates (other than an Acquired Entity) in trust or otherwise;
(c) Any and all Intellectual Property other than of Parent and its Affiliates not described in clause (Ai) or (ii) of Section 2.01(e) and all trademarks licensed to Buyer under the Transferred Trademark License Agreement except for such rights as are licensed pursuant thereto (collectively, the “Excluded Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi”);
(viid) all current and prior All casualty, liability or other insurance Contracts policies related to the Business and all claims or rights under any such insurance policies (other than those relating to any Employee Benefit Plan of any nature with respect thereto, including all insurance proceeds received or receivable thereunderan Acquired Entity);
(viiie) all owned Any foreign, federal, state or leased desktop computerslocal Tax refunds or credits and duty draw backs on export sales for Taxes and duties originally paid by Parent or any of its Affiliates (including Acquired Entities) and any foreign, laptopsfederal, tabletsstate or local anti-dumping duty claims, mobile phones and similar assets primarily used by employees to the extent attributable to any Tax period ending on or prior to the Closing Date or to any Pre-Closing Period, but only to the extent a Tax refund or credit, duty draw back, or anti-dumping duty claim is not included in the calculation of Seller Closing Net Working Capital on the Final Schedule; provided, however, that any refund or credit of a Mexican “asset tax” attributable to any Tax period ending on or prior to the Closing Date or to any Pre-Closing Period shall be an Excluded Asset, but only to the extent such credit is not included in the calculation of Closing Net Working Capital on the Final Schedule;
(f) All real property interests of Parent or any of its Affiliates other than the Transferred EmployeesReal Property;
(ixg) all other Information Technology Assets All rights (other than those rights of the Buyer Group, including the Acquired Entities) under this Agreement, the Other Agreements, the Agreements listed or described in Section 2.01(a)(xviiion Schedule 2.02(g) or Section 2.01(a)(xix(collectively, all such excluded Agreements, the “Excluded Agreements”);
(xh) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject All computer software related to the provisions of Article VIIIBusiness, any right except to any refund the extent included among the Purchased Assets described in Section 2.01(e) or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xiiSection 2.01(f);
(xiiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi)Any Intergroup Receivables;
(xivj) Any Purchased Assets sold or otherwise disposed of in the Ordinary Course of Business and in compliance with Section 5.03 hereof from the date hereof to the Closing Date;
(k) All books, records, files and papers prepared in connection with this Agreement or the Other Agreements and the transactions contemplated hereby and thereby and all cells lines minute books and corporate records of Parent or its Affiliates (other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xxAcquired Entities); and
(xvl) any real property Any and all claims or interest in real property other than causes of action under Antitrust Laws to the Transferred Real Propertyextent arising and attributable to the period before the Closing Date, whether or not currently pending.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Goodyear Tire & Rubber Co /Oh/)
Excluded Assets. Notwithstanding anything any provision in Section 2.01(a) the Transaction Documents to the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any all assets, properties, rights or properties and interests of ▇▇▇▇▇▇Seller and its Affiliates of every kind and description, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangiblewherever located, real, personal or mixed, except for tangible or intangible, not included in the Purchased Assets (herein referred to as the “Excluded Assets”) will not be sold, transferred, assigned, conveyed or delivered to Buyer, including:
(a) all goodwill generated by, and associated with, the Business, except that good will associated with Trademarks transferred to Buyer is not an Excluded Asset;
(b) the Dedicated Plant, together with all buildings, fixtures and improvements erected thereon and all appurtenant easements and other rights and interests appurtenant thereto;
(c) all boat and engine inventory located at the Dedicated Plant;
(d) one of the two sets of Hammer X tooling (solely for the purpose of building the Sea Ray Pachanga model), including, but not limited to, the plug/masters;
(e) all cash, bank accounts, bank deposits and cash equivalents of Seller;
(f) all notes and accounts receivable (including all intercompany receivables owed to Seller by any Affiliate of Seller) generated by the following:Business prior to the close of business on the Closing Date, and any collateral or other security relating thereto and the proceeds thereof;
(g) except as set forth in Schedule 2.1(a), all computer, hardware, systems, networking or communications assets owned or leased by the Business;
(h) all of Seller’s rights, claims or causes of action against third parties relating primarily to any Excluded Asset or Excluded Liability;
(i) all cash insurance policies relating to the Business and Cash Equivalentsall claims, including any cash credits, causes of action or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationrights thereunder and proceeds thereof;
(j) all books and records of the Business other than those identified in Section 2.1(f) and Section 2.1(g), including construction records and quality documentation for all boats produced by Seller; provided, however, the Seller shall provide Buyer (within a reasonable time after request by Buyer at Buyer’s expense, subject to Section 6.8 hereof) with copies of any records of the Business, reasonably required by Buyer or Parent to (i) comply with any Requirements of Laws, including, without limitation, securities law, rules and regulations or (ii) to assist Buyer or Parent to investigate, analyze or defend against any Third Party Claims or (iii) to assist Buyer to assert or defend rights to any of the Purchased Assets.
(k) Seller’s rights arising under this Agreement and all Accounts Receivablethe other Transaction Documents or the transactions contemplated hereby or thereby;
(iiil) any Contracts used in the Triage Business that relate all contracts, agreements, commitments, purchase orders, licenses, leases and other instruments, whether written or oral, related to the division, corporate office, overhead or back-office functions of Seller and its AffiliatesBusiness,;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(vm) all Intellectual Property of Seller’s ERISA Plans and other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts employee benefit plans and all rights assets held, or set aside to fund the obligations of any nature with respect theretoSeller, including all insurance proceeds received or receivable thereunder;
(viiin) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees refunds of any Tax for which Seller or its Affiliates other than the Transferred Employees;is liable pursuant to Section 6.1; and,
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(xo) all assets of any Seller Plan the Business sold or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate otherwise disposed of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing ordinary course of business during the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes period from the date of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, this Agreement until the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real PropertyClosing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fountain Powerboat Industries Inc)
Excluded Assets. Notwithstanding anything in the provisions of Section 2.01(a) to the contrary2.1(a), no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets shall not include any other assets of Seller (collectively, the “Excluded Assets”), including the followingincluding:
(i) any of Seller’s or its Affiliates’ retail operations (including retail operations located at the same locations as the Pharmacies), and all cash assets or properties located thereon or used in connection therewith, and Cash Equivalentsrights appurtenant thereto, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationequipment, inventory, records, supplies, manufacturer warranties, Permits, prepaid expenses, deferred charges, advance payments, security deposits and prepaid items, goodwill and other assets;
(ii) any over-the-counter merchandise or over-the-counter inventory, including over-the-counter merchandise or over-the-counter inventory located behind the Pharmacy counter, and all Accounts Receivabledurable medical equipment;
(iii) any Contracts used in the Triage Business that relate to the divisioncomputer equipment and systems, corporate officeorder-entry devices, overhead or backpoint-office functions of Seller of-sale systems, surveillance systems, and its Affiliatesalarm systems;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii)any of Seller’s licenses, any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entitypermits, including Contracts described on Schedule 2.01(b)(iv)contracts, employee benefit plans and programs and computer hardware, software programs and systems;
(v) all Intellectual Property any of Seller’s websites, trademarks, trade names, intellectual property and other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Propertyintangible property or rights;
(vi) Inventory located at the machineryPharmacies having an aggregate Inventory Value in excess of $36,000,000 and, equipmentwith respect to each Pharmacy, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)having a value in excess of the Applicable Pharmacy Inventory Cap;
(vii) all current any books and prior insurance Contracts records related to Taxes of Seller (including accounting records and Tax Returns) and all rights financial and Tax records relating to the Pharmacies that form part of Seller’s or any nature of Seller’s Affiliates’ or any of their respective Affiliates’ general ledger other than, in each case, Tax records prepared solely with respect thereto, including all insurance proceeds received or receivable thereunderto the Purchased Assets;
(viii) all owned cash, cash equivalents, or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees securities of Seller or its any of Seller’s Affiliates other than the Transferred Employees(including any drawer cash), accounts receivable or proceeds thereof, trade receivables, refunds or credits, claims for refunds or credits or rights to receive refunds or credit related to Taxes that are an Excluded Liability;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviiiany Script Assets, any (A) registration information and customer data and other information derived from customer loyalty cards, promotions, co-branded credit card programs and the like, (B) customer lists (including email addresses) related to Seller’s or Section 2.01(a)(xix)any of Seller’s Affiliates’ internet business operations, (C) guest data related to the non-Pharmacy operations of Seller or any of Seller’s Affiliates, and (D) equipment related to the ▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇▇▇.▇▇▇ business operations;
(x) all assets claims, to the extent arising out of, relating to or in respect of any other Excluded Asset and Excluded Liability or the operation of the Pharmacies prior to Closing, including (A) any such items arising under insurance policies, and (B) all guarantees, warranties, indemnities, and similar rights in favor of Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller’s Affiliates in respect of any Excluded Asset, any Excluded Liability or the operation of the Pharmacies prior to the applicable Closing;
(xi) subject to the provisions shelving and similar fixtures, all real property owned, leased, subleased or otherwise occupied by Seller or any of Article VIIISeller’s Affiliates, any right to any refund or credit together with respect to Taxes relating to any Preall buildings, fixtures, structures, and improvements situated thereon and all easements, rights-Closing Tax Periodof-way and other rights and privileges appurtenant thereto;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);insurance policies; and
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xviother assets identified on Schedule 2.1(c);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Assets. Notwithstanding anything contained in Section 2.01(a) 2.1 to the contrary, no Designated Purchaser neither the Seller nor any of its Affiliates are transferring, assigning or conveying, and the Company Group is not accepting, any assets other than those expressly listed or described in Section 2.1, and the term “Transferred Assets” shall purchase or otherwise acquire any rightexpressly exclude the following assets of the Seller and its Affiliates (other than the Company Group) all of which shall be retained by the Seller and its Affiliates (other than the Company Group) (collectively, title and interest in or to any the “Excluded Assets”):
(a) all assets, properties and rights of every kind and nature, whether tangible or properties intangible, real or personal, and wherever located, to the extent not used or held for use by the Seller and its Affiliates in connection with the Business;
(b) any assets with respect to the manufacturing, development, sale or distribution of consumer and professional tissue products, including bath tissue, towels, table napkins, hard rolls, facial tissue, and wipe products to the extent not used by the Seller or its Affiliates in (i) the IFP Segment or (ii) the ABU Geographic Regions (including those assets set forth on Schedule 2.2(b) of the Disclosure Schedules);
(c) the Equity Interests of the Seller and each Excluded Affiliate other than the Purchased Shares, the Company Interests and the Company Group Equity Interests;
(d) all of the Seller’s and its Affiliates’ cash and cash equivalents (other than, for the avoidance of doubt, ▇▇▇▇ held by members of the Company Group as of the Calculation Time, including the Minimum Cash);
(e) all accounts receivable, including trade accounts receivable and other receivables, of Seller or any of its Affiliates (other than members of the Company Group), in each case, at the Calculation Time;
(f) (i) the personnel records of the Transferred Employees that are prohibited from transfer by applicable Law, (ii) the Seller’s and any of its Affiliates’ (other than any member of the Company Group’s) (x) books and records of, or related to, internal corporate proceedings and regulatory and compliance matters, (y) Tax records (including Returns) and (z) work papers and (iii) copies of the books and records set forth in Section 2.1(m) that the Seller or any of its Affiliates (other than members of the Company Group) are prohibited from disclosing or transferring to the Buyer under applicable Law;
(g) all Intellectual Property that is not Transferred Intellectual Property, including, (i) trade dress rights, design rights and copyrights in any product or packaging and (ii) rights in the following names and marks and any variation, translation, combination, or derivation thereof, and all confusingly similar names and trademarks: (v) the Japan Trademarks, solely until the Japan Assignment Date, (w) “RIGHTCYCLE,” (x) “▇▇▇▇▇▇, ▇▇-▇▇▇▇▇ PROFESSIONAL” and “▇▇▇▇▇▇▇▇-▇▇▇▇▇,” (y) names and marks licensed by the Seller or their respective its Affiliates pursuant to the Trademark License Agreement, and (z) names and marks that begin with the constituent element “▇▇▇” and that are not expressly listed in Schedule 3.14(a) of the Disclosure Schedules;
(h) all of the Seller’s and its Affiliates, regardless ’ bank accounts (other than any bank accounts of kind, description or location or whether tangible or intangible, real, personal or mixed, except for any member of the Purchased Assets (the “Excluded Assets”Company Group), including the following:;
(i) all cash (i) Tax assets and Cash Equivalentsattributes of Seller and its Affiliates (other than the Transferred Subsidiaries) and of any Seller Consolidated Group and (ii) Tax assets and attributes in respect of any Excluded Asset, including any cash Excluded Liability or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationotherwise with respect to the Excluded Business;
(iij) except as specifically provided in Section 2.1(n) and subject to Section 5.21(b), any of the Seller’s or its Affiliates’ insurance policies and all Accounts Receivablerights, claims or causes of action thereunder;
(iiik) except as specifically provided in Section 5.9, any assets relating to any Employee Plan (other than any Transferred Subsidiary Plan or Assumed Plan);
(l) all assets sold, or otherwise disposed of, in compliance with the terms of this Agreement during the period from the date hereof until the Closing Date;
(m) all consideration received by the Seller and its Affiliates, and all rights of the Seller and its Affiliates under, this Agreement, the Company Transfer Agreements or any Ancillary Agreements, subject to the terms hereof and thereof;
(n) subject to Section 5.13, the Comingled Contracts used and the Contracts listed on Schedule 2.2(n) of the Disclosure Schedules;
(o) except as specifically provided in Section 2.1(s) and subject to Section 5.14, the Comingled Permits;
(p) all credits, prepaid expenses, deferred charges, advance payments, refunds, security deposits, prepaid items and duties of the Seller and its Affiliates (other than members of the Company Group) included in the Triage Business that relate calculation of the Asset Jurisdiction Net Working Capital;
(q) each Divestiture Compensation Agreement;
(r) all rights to Actions, causes of action, judgments, defenses, rights of subrogation, rights of set-off and demands of any nature in favor of such Seller or any of its Affiliates set forth on Schedule 2.2(r) of the divisionDisclosure Schedules, corporate officeincluding all rights under all guarantees, overhead warranties, indemnities and similar rights and rights to contribution, indemnification, reimbursement and all other rights of recovery in connection thereto in favor of such Seller or back-office functions any of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (As) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii2.2(s) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Disclosure Schedules; and
(xvt) all confidential communications between the Company, the Seller and its Affiliates (including any real property Transferred Subsidiary prior to the Closing Date), on the one hand, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP (“K&E”) or interest ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, on the other hand, to the extent relating to (i) the negotiation, execution or delivery of this Agreement or the transactions contemplated hereby, including any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, and including any information or files in real property other than any format of K&E in connection therewith, or (ii) subject to Section 5.27, the Business, the Company, the Transferred Real PropertyAssets or the Transferred Subsidiaries (in each case, prior to the Closing Date), solely to the extent such transfer, assignment or conveyance would reasonably be expected to contravene any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, and including any information or files in any format of K&E in connection therewith.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Kimberly Clark Corp)
Excluded Assets. Notwithstanding anything The assets that Sellers shall sell, transfer, assign, convey and deliver to Purchasers, and that Purchasers shall purchase, assume, accept and acquire from Sellers, at the Closing are the Assets set forth in Section 2.01(a) 2.1. Each Seller is not selling, transferring, assigning, conveying or delivering to the contraryPurchasers, no Designated Purchaser shall purchase and Purchasers are not purchasing, accepting, assuming or otherwise acquire any acquiring from such Seller, such Seller’s right, title and or interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets other assets (the “Excluded Assets”), including the following:
(ia) all cash and Cash Equivalentscash equivalents, securities, and negotiable instruments of such Seller or any of its Affiliates on hand, in lock boxes, in financial institutions or elsewhere, including any the Lockbox Account and its contents on the Closing Date, but excluding the cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used cash equivalents of the e^deltacom Business received after Closing in the Triage Business that relate to Lockbox Account in accordance with Section 2.1(i) and excluding the division, corporate office, overhead or back-office functions of Seller cash and its Affiliates;
(iv) except to the extent included cash equivalents in the Purchased Assets under Operating Accounting in accordance with Section 2.01(a)(v2.1(i) or and Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv2.7(a);
(v) all Intellectual Property other than (Ab) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described Excluded Improvements set forth on Schedule 2.01(b)(vi2.1(a)(ii);
(viic) all current assets and prior insurance Contracts properties of every kind and all rights of any nature with respect theretodescription owned, leased (pursuant to leases in which a Seller is not the lessor) or otherwise held for use by third parties, including all insurance proceeds received or receivable thereundercustomers under the Customer Contracts, located at the Data Center Facility;
(viiid) (i) all owned or leased desktop computersfiber optic facilities, laptopsequipment and elements of such Seller, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than any of such facilities set forth on Schedule 2.1(b)(i), and (ii) all rights provided to Sellers by the Transferred EmployeesDeclaration of Easement;
(ixe) all other Information Technology Assets contracts of insurance and the prepaid business insurance (including liability, business interruption and the like) premiums and the prepaid group insurance premiums of such Seller;
(f) all of such Seller’s rights under manufacturers’, resellers’ and vendors’ warranties other than those described in such Seller’s rights under manufacturers’, resellers and vendors warranties transferred pursuant to Section 2.01(a)(xviii) or Section 2.01(a)(xix2.1(n);
(xg) all assets rights to Tax refunds, credits and similar benefits, and to any Tax attributes, relating to or attributable to periods ending, or relating to an event occurring prior to, the Closing Date;
(h) the minute books from the meetings of any the boards of directors and stockholders of such Seller, the stock records and corporate seal of such Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed and the Tax returns and records relating to by any Seller or Affiliate Taxes of such Seller;
(xii) subject to all rights of such Seller under this Agreement and the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Periodother Transaction Agreements;
(xiij) all prepaid commissions owed to Sellers in connection with the Registrations used in e^deltacom Business to the manufacturing of extent earned prior to the Products set forth Closing Date and to the extent listed on Schedule 2.01(b)(xii2.2(j);
(xiiik) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Dinix Agreement; and
(xvl) any real property or interest in real property other than the Transferred Real Propertyassets identified on Schedule 2.2(l).
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to Buyer expressly understands and agrees that all of the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title assets of Seller and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for its Affiliates other than the Purchased Assets shall remain the property of Seller and its Affiliates (collectively, the “Excluded Assets”). Notwithstanding anything to the contrary contained herein, including the definition of Purchased Assets, Excluded Assets shall include the following:
(ia) all of the cash on hand and in banks and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its AffiliatesAffiliates (other than the cash on hand and in banks and Cash Equivalents of the JVs), including those set forth on Schedule 5.10;
(ivb) except all raw materials, MRO and work-in-process materials held at the Retained Facilities, other than raw materials, MRO and work-in-process materials held at the Pedrengo Facility attributable to the extent included in Business;
(c) subject to Section 5.06, insurance policies relating to the Purchased Assets under Section 2.01(a)(vBusiness and all claims, credits, causes of action or rights thereunder;
(d) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described the Trademarks and names set forth on Schedule 2.01(b)(iv2.03(d) and all goodwill associated therewith (the “Seller’s Marks”);
(ve) the Common Molecule IPR;
(f) all rights and interests of Seller and its Affiliates in and to information technology assets located in Naugatuck, Connecticut, Middlebury, Connecticut or West Lafayette, Indiana not listed on Schedule 2.02(c);
(g) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all Rights owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred EmployeesBusiness Intellectual Property Rights;
(ixh) all minute books and corporate records of Seller and its Affiliates to the extent not relating primarily to the Business;
(i) all records relating to the current or former employees or consultants of the Business, other Information Technology Assets than such employee and consultant records relating to the Continuing Employees which can be transferred to Buyer in compliance with Applicable Law;
(j) the Retained Facilities;
(k) the Shared Assets;
(l) the property, leases and other interests in real property other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xixon Schedule 3.18(a);
(m) all rights of Seller and its Affiliates arising under this Agreement or the transactions contemplated hereby;
(n) all of the rights and interests of Seller and its Affiliates in and to (i) all internal correspondence and correspondence with outside counsel in connection with the sale of the Business, (ii) the Confidentiality Agreement and the Transaction Documents, and (iii) all books, records, files and papers, whether in hard copy or computer format, that are primarily related to analysis of the Transaction Documents or the transactions contemplated thereby;
(o) all of the rights and interests of Seller and its Affiliates in and to all information, files, records, data, plans, contracts and recorded knowledge to the extent that any of the foregoing are comprised of written materials that Seller or any of its Affiliates is required by Applicable Law to retain (collectively, the “Excluded Records”); provided that promptly after Closing, Seller shall provide (or caused to be provided) a copy of all such Excluded Records to Buyer to the extent permitted by Applicable Law;
(p) any legal or beneficial interest in the share capital of Seller or any of its Affiliates other than the JV Shares;
(q) any licenses, permits, franchises, qualifications, orders or other governmental authorizations, or waivers of any of the foregoing listed on Schedule 2.03(q);
(r) any amounts owed by Seller or any of its Affiliates (to the extent not engaged in the Business) to the Business (other than Trade Accounts Receivable);
(s) all tax refunds with respect to any Tax for which Seller is liable pursuant to this Agreement;
(t) all assets relating to any Retained Plan and, if Seller retains Liabilities relating to an Assumed Plan, a portion of the Assets relating to such Assumed Plan to the extent related to such retained Liabilities, as determined using reasonable actuarial assumptions to the extent the portion of such Assets relating to such retained Liabilities is not otherwise readily determinable;
(u) the German Real Estate;
(v) all Contracts related to Intellectual Property Rights, Software or the development of technology other than the Business IP Contracts;
(w) any shares of capital stock of GSIS JV; and
(x) all other assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property2.03.
Appears in 1 contract
Sources: Asset Purchase and Contribution Agreement (Chemtura CORP)
Excluded Assets. Notwithstanding anything in Section 2.01(a(a) to the contrary, no Designated Purchaser Sellers shall purchase or otherwise acquire any retain their right, title and interest to, in or to any and under the following assets, properties and rights or properties of ▇▇▇▇▇▇the Sellers (such assets to be retained by Sellers, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:):
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationITAR-Controlled Assets;
(ii) any and all Accounts ReceivableIntellectual Property Rights exclusively developed under the DOD/Security Contracts or the Other USG Contracts or provided to Sellers exclusively in connection with the performance of the DOD/Security Contracts or the Other USG Contracts (the “Excluded IP”) (the parties will agree on the list of Intellectual Property Rights that constitute Excluded IP within three (3) Business Days of the date of this Agreement);
(iii) any Contracts used in the Triage Business that relate to Excluded Leases (including the division, corporate office, overhead or back-office functions of Seller and its Affiliates▇▇▇ Arbor Lease);
(iv) except other than those set forth in Section 2.1(a)(xvii), all avoidance claims or causes of action available to the extent included in the Purchased Assets Sellers under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entitychapter 5 of title 11, including Contracts described on Schedule 2.01(b)(iv)Sections 544, 545, 547, 548, 549, 550 and 553 of the Bankruptcy Code;
(v) the Excluded Agreements (including the DOD/Security Contracts and the Other USG Contracts) and any and all Intellectual Property rights thereunder (other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Propertyaccounts receivable);
(vi) all Inventory, Equipment and other personal property located as of the machineryClosing Date at the Sellers’ research and development facilities in Ann Arbor, equipmentMichigan, mechanical other than personal computers of the Powder R&D Team and spare partsall laboratory Equipment primarily used by the Powder R&D Team and all other Inventory, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media Equipment and fixtures described on Schedule 2.01(b)(vi)other personal property exclusively used by the Government Research Team and Government Solutions Team;
(vii) all current such other facilities and prior insurance assets that may be identified through the parties’ additional engagement with the Committee on Foreign Investment in the United States as being integral to the operations and business of the Government Research Team and Government Solutions Team or the performance of the DOD/Security Contracts and all rights Other USG Contracts; provided however, that no facility or asset shall be included in the definition of any nature with respect thereto“Excluded Assets” pursuant to this clause (vii), including all insurance proceeds received unless Purchaser consents to such inclusion, which consent may not be unreasonably withheld or receivable thereunderdelayed unless such inclusion would reasonably be expected to materially and adversely affect the expected economic or commercial benefits to Purchaser arising from the transactions contemplated hereby;
(viii) all owned or leased desktop computersany prepaid Property Tax with respect to the Purchased Assets that are attributable to Pre-Closing Tax Periods, laptopsand any refund of Excluded Taxes (for the avoidance of doubt, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than any refund of Property Taxes to which the Transferred EmployeesPurchasers are entitled pursuant to Section 7.4(c));
(ix) except for any security deposits made in respect of any Assumed Leases and any prepaid amounts that are a Purchased Asset, all cash and cash equivalents, including checks, commercial paper, treasury bills, certificates of deposit and other Information Technology Assets bank deposits, securities, securities entitlements, instruments and other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix)investments and all bank accounts and securities accounts, including any cash collateral that is collateralizing any letters of credit and all bank accounts of the Sellers;
(x) all assets other than the Foreign Equity Interests and stock or other equity interests in Fisker Automotive, Inc. or 24M Technologies, Inc., any capital stock, securities or other interest of any Seller Plan or held in any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of SellerPerson;
(xi) subject to the provisions of Article VIIIall rights, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaimsactions, refunds, causes of action, choses in action, actions, suits or proceedings, rights of recovery, and rights of set-off setoff, rights of recoupment, rights of indemnity or contribution and other similar rights (known and unknown, matured and unmatured, accrued or contingent, regardless of whether such rights are currently exercisable) against any kind (Person, including all damages warranties, representations, guarantees, indemnities and payments for pastother contractual claims (express, present implied or future infringement or misappropriation of Intellectual Propertyotherwise), the right to use and recover for past infringements or misappropriations of Intellectual Propertyin each case, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described assets, rights and properties set forth in this Section 2.01(b2.2(a) or the Excluded Liabilities;
(xii) prepayments made with regard to insurance policies not otherwise included assumed by Purchasers and security deposits, pre-paid expenses or prepayments to the extent made in Purchased Assets connection with any Excluded Asset or Excluded Liability;
(xiii) Sellers’ rights under Section 2.01(a)(xvi)this Agreement and under any other Transaction Document and all cash and non-cash consideration payable or deliverable to or for the account of any Seller by Purchaser pursuant and subject to the terms and provisions of this Agreement or any Ancillary Agreement;
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion assets of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Foreign Benefit Plan or U.S. Benefit Plan not assumed by any Purchaser; and
(xv) Retained Books and Records; provided that Sellers shall provide, at the Seller’s cost and expense, Purchasers with a copy (and shall allow Purchasers to make a copy) of any real property Retained Books and Records that are related to the Purchased Assets, the Assumed Liabilities or interest in real property the Sellers’ Business or the Joint Venture (other than the Transferred Real PropertyRetained Books and Records described in clause (D) of the definition of Retained Books and Records).
(b) Notwithstanding anything in this Agreement to the contrary, Wanxiang may, in its sole and absolute discretion, at any time on or prior to the date that is one Business Day before the Closing Date, elect not to acquire any of the assets, properties and rights of any Seller, and any asset so designated by Wanxiang shall be an Excluded Asset for all purposes hereunder; provided, however, that with respect to Contracts and Leases, such designation shall be made in accordance with Section 2.9.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Assets. Notwithstanding anything in Section 2.01(a) this Agreement to the contrary, no Designated Purchaser expressly understands and agrees that the following assets and properties of the Seller Entities (the “Excluded Assets”) shall purchase be retained by the Seller Entities and their Affiliates, and shall be excluded from the Purchased Assets:
(a) Any and all legal and beneficial interest in the share capital or equity interest of any Person;
(b) Any and all Contracts and portions of Contracts, including the Contracts set forth on Section 2.5(b) of the Seller Disclosure Schedules, other than the Specified Business Contracts;
(c) Any and all owned and leased real property and other interests in real property;
(d) Any and all Intellectual Property, other than the Business Intellectual Property;
(e) Any and all Tangible Personal Property, other than the Transferred Tangible Personal Property;
(f) Any and all raw materials, work-in-process, finished goods, supplies and other inventories, other than the Transferred Inventory;
(g) Any and all accounts receivable and other current assets (including prepaid expenses), other than the Business Current Assets;
(h) Any and all Cash Amounts;
(i) Any and all Permits, other than those specifically identified as Purchased Assets in Section 2.4;
(j) Any and all claims and defenses (including any Retained Claim), other than the claims and defenses specifically identified as Purchased Assets in Section 2.4;
(k) Any and all documents, instruments, papers, books, records, books of account, files and data, catalogs, brochures, sales literature, promotional materials, certificates and other documents not specifically identified as Purchased Assets in Section 2.4;
(l) Any and all loans and advances, if any, by the Seller Entities to any of their Affiliates or otherwise acquire to the Business;
(m) Any and all refunds or credits of or against Excluded Business Taxes, including any right, title and interest in such refund or credit of or against Excluded Business Taxes that is attributable to any assetsnet operating loss or Tax credit;
(n) Any and all Tax Returns and other books and records related to Taxes of, rights paid or properties payable by Seller, the Seller Entities or any of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless other than any such Tax Returns and books and records that are exclusively related to the Purchased Assets, the Assumed Liabilities, or the Business;
(o) Any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not related to the Business, for all periods before, through and after the Closing, including any and all refunds and credits due or to become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies, binders and interests for all periods before, through and after the Closing;
(p) Except for those assets expressly identified as Purchased Assets in the subsections of kindSection 2.4, description any and all assets, business lines, properties, rights, Contracts and claims of Seller or location any of its Subsidiaries not exclusively used, or held exclusively for use, in the operation of the Business (including all assets, business lines, properties, rights, Contracts and claims constituting ownership interests in, or that are exclusively used or exclusively held for use in or exclusively related to, the Retained Businesses), wherever located, whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(iiq) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)The Specified Insurance Policies; and
(xvr) The assets set forth on Section 2.5(r) of the Seller Disclosure Schedules. The Parties acknowledge and agree that neither Purchaser nor any real property of its Subsidiaries will acquire any direct or indirect right, title and interest in real property other than the Transferred Real Propertyany Excluded Assets.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Agios Pharmaceuticals, Inc.)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary set forth in this Agreement, no Designated Purchaser shall purchase or otherwise acquire any right, title the Assets will not include the following assets properties and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, the Seller or their respective AffiliatesParent (collectively, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”)): (a) cash, cash equivalents and marketable securities; (b) Organizational Documents or minute and equity record books of the Seller or the Parent; (c) income tax returns and reports of the Seller or the Parent; (d) corporate seals, checkbooks and cancelled checks of the Seller or the Parent; (e) all rights, claims and causes of action relating to any Excluded Asset or Excluded Liability; (f) all equity interests of the Seller or the Parent and any of their respective Affiliates; (g) all refunds of any Tax that is an Excluded Liability; (h) all written communications, including emails, relating to the following:
Excluded Assets, Excluded Liabilities and negotiations related to the Transactions; (i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any Retained Seller Benefit Plans and all Accounts Receivable;
Employment Agreements held by the Seller; (iiij) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect theretothe Seller and Parent under this Agreement, including and all other Transaction Documents; (k) all insurance proceeds received policies of the Seller and Parent and all rights, claims or receivable thereunder;
causes of action of the Seller and/or Parent arising under such insurance policies; (viiil) all owned rights of the Seller and/or Parent under contracts or leased desktop computers, laptops, tablets, mobile phones agreements that are not Assumed Contracts; and similar assets primarily used by employees of Seller or its Affiliates (m) all Permits other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real PropertyAssigned Permits.
Appears in 1 contract
Sources: Asset Purchase Agreement (Global Arena Holding, Inc.)
Excluded Assets. Notwithstanding anything in Section 2.01(a) this Agreement to the contrary, no Designated Purchaser shall expressly understands and agrees that, Seller, the Seller Entities and their respective Affiliates (other than the Purchased Companies and their Subsidiaries) will retain and not sell, transfer, assign or convey, and Purchaser will not purchase or otherwise acquire acquire, any rightof the following assets and properties of the Seller Entities, title or any asset that is not a Purchased Asset (collectively, the “Excluded Assets”), and any such Excluded Assets may be transferred out of the Purchased Companies and their Subsidiaries prior to the Closing, notwithstanding any other provision of this Agreement:
(a) Any and all legal and beneficial interest in the share capital or equity interest of any Person other than the Purchased Company Shares;
(b) Any and all Contracts and portions of Contracts, other than the Business Contracts, the Real Property Leases and the leases relating to the Transferred Leased Property;
(c) Any and all owned and leased real property and other interests in real property, other than the Owned Real Property and the Transferred Leased Property;
(d) Any and all Intellectual Property, other than the Business Intellectual Property;
(e) Any and all Tangible Personal Property other than the Transferred Tangible Personal Property;
(f) Any and all raw materials, work-in-process, finished goods, supplies and other inventories, other than the Inventory;
(g) Any and all Permits other than the Permits held by the Purchased Companies or any of their Subsidiaries;
(h) Any and all claims and defenses (including any Retained Claim), other than the claims and defenses specifically identified as Purchased Assets;
(i) Any and all documents, instruments, papers, books, records, books of account, files and data, catalogs, brochures, sales literature, promotional materials, certificates and other documents not specifically identified as Purchased Assets in Section 2.4;
(j) Any and all assets of the Seller Benefit Plans;
(k) Any and all loans and advances, if any, by the Seller Entities to any of their Affiliates or otherwise to the Business;
(l) Any and all rights to refunds or credits to the extent provided in Article VI;
(m) Tax Returns and other books and records related to Taxes paid or payable by Seller, the Seller Entities or any of their respective Affiliates (other than Tax Returns and other books and records exclusively related to Taxes of the Purchased Companies and their respective Subsidiaries);
(n) Any and all Cash Amounts (other than any Cash Amounts of the Purchased Companies and their Subsidiaries as of immediately prior to the Closing to the extent included in the calculation of the Closing Cash Amounts), and any and all accounts receivable, current assets, prepaid expenses and security deposits (in each case, other than those of the Business as of immediately prior to the Closing to the extent included in the calculation of the Closing Working Capital);
(o) Any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not Related to the Business, for all periods before, through and after the Closing, including any and all refunds and credits due or to become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies, binders and interests for all periods before, through and after the Closing; and
(p) Except for those assets expressly identified as Purchased Assets in clauses (a) through (n) of Section 2.4, any and all assets, rights or properties business lines, properties, rights, Contracts and claims of ▇▇▇▇▇▇, Seller or their respective Affiliatesany of its Affiliates not Related to the Business (including all assets, regardless of kindbusiness lines, description properties, rights, Contracts and claims constituting ownership interests in, or location that are used or held for use in or related to, the Retained Businesses), wherever located, whether tangible or intangible, real, personal or mixed. The Parties acknowledge and agree that neither Purchaser nor any of its Subsidiaries will acquire any direct or indirect right, except for title and interest in any Excluded Assets. Notwithstanding anything in this Agreement to the contrary, Seller may take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer any Excluded Assets from the Purchased Assets Companies and their Subsidiaries (and, if needed, from the “Excluded Assets”)Seller Entities) to Seller or one or more of its Affiliates for such consideration or for no consideration, as may be determined by Seller in its sole discretion. After the Closing Date, Purchaser shall take all actions (and shall cause its Affiliates (including the Purchased Companies and their Subsidiaries) to take all actions) reasonably requested by Seller to effect the foregoing, including the following:
(i) all cash and Cash Equivalents, including return of any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Excluded Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts for no additional consideration. Any action taken pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) this paragraph after the Transferred Intellectual Property, and (B) Closing Date shall be deemed for purposes of calculating the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual PropertyWorking Capital, the right to use Closing Cash Amounts and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets Closing Funded Debt pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than 2.9 to have occurred as of immediately prior to 11:59 p.m., Eastern Time, on the Transferred Real Propertyday immediately preceding the Closing Date.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) herein to the contrary, no Designated Purchaser the Sellers shall purchase or otherwise acquire any rightretain, title and interest in or to any the Purchased Assets shall expressly exclude the following assets, properties, goodwill or rights of the Sellers and their Subsidiaries (collectively, the “Excluded Assets”):
(a) the minute books, stock records, stock certificates, Organizational Documents, corporate seals, corporate registers and similar documents of Parent and its Subsidiaries (other than the Purchased Entities and their Subsidiaries);
(b) all Books and Records that any Seller or properties any of its Subsidiaries is required under applicable Laws to retain in original form;
(c) all rights of the Sellers under Permits to the extent not transferable by Law or by the terms of any Permit;
(d) all rights of the Sellers under this Agreement and the Ancillary Agreements;
(e) any real property and related facilities owned or leased by any Seller or any of its Subsidiaries and set forth on Schedule 1.2(e);
(f) the “▇▇▇▇▇ ▇▇▇▇▇▇▇▇” name and trademarks, Seller or the upright “triangle logo,” and all related trademarks, service marks, trade names, logos, symbols, corporate names domain names, and other identifiers of the Sellers and their respective AffiliatesAffiliates that incorporate or include “▇▇▇▇▇ ▇▇▇▇▇▇▇▇” or the upright “triangle logo”, regardless subject to the Trademark Coexistence Agreement;
(g) all assets used or held for use by the business conducted by the Label and Packaging Materials division of kind, description or location or whether tangible or intangible, real, personal or mixedParent, except for the Purchased Assets Intellectual Property set forth on Schedule 1.1 (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(vb)(vii) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv1.1(c);
(vh) all Intellectual Property other than (A) the Transferred Intellectual Propertyknown or unknown, and (B) the Additional Assigned Intellectual Property;
(vi) the machineryliquidated or unliquidated, equipmentcontingent or fixed, mechanical and spare partsrights, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received claims or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, recovery and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Propertykind, and indemnities against any and all corresponding rights Person that any Seller may have been, now or hereafter may be secured throughout the world with respect to against any Intellectual Property) Person to the extent related to any of the items described in this Section 2.01(bExcluded Assets or the Retained Liabilities;
(i) or not otherwise included in all Cash of the Sellers and their Subsidiaries (other than the Purchased Assets under Section 2.01(a)(xviEntities and their Subsidiaries);
(xivj) all cells lines Insurance Policies of any Seller or any of its Subsidiaries (other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Entities and their Subsidiaries) and rights thereunder;
(k) all Purchased Assets sold or otherwise disposed of during the period from the date hereof until the Closing Date in accordance with Section 5.2;
(l) all claims for refund of Taxes and other governmental charges of whatever nature with respect to the Purchased Entities, Purchased Assets or Parent IP Assets for Pre-Closing Tax Periods;
(m) except (i) as required by Law or (ii) pursuant to the transfer of the Transferring Pension Plans to Buyer or its Affiliates pursuant to Section 2.01(a)(xx9.1(f), all rights in connection with and assets of (or related to) any employee benefit or welfare plan of a Seller or any of its Affiliates (including the Employee Plans) and any related Contract between any Person and a Seller or any of its Affiliates;
(n) all assets relating to the Avery Research Center;
(o) all rights of the Sellers under Contracts related to the Business that are not assigned to Buyer after the Sellers have complied with Section 5.4(a), subject to Section 5.4(b);
(p) all Intellectual Property of the Sellers and their Subsidiaries not exclusively used in the Business (other than the Intellectual Property used primarily in the Business and set forth on Schedule 1.1(b)(vii) or Schedule 1.1(c));
(q) all assets, properties, goodwill, rights and claims of the Sellers and their Subsidiaries that are not primarily related to the Business as currently conducted;
(r) all Contracts not expressly related to the Facilities to which any Seller is a party primarily relating to the Business that obligates a Seller to clean-up, remediate or otherwise assume liability for any Hazardous Materials, or pay any third party for any costs related to the clean-up, remediation or assumption of liability for any Hazardous Materials, except for that certain Arivec Chemicals Site PRP Group Agreement between and among those potentially responsible parties signed by Parent on March 21, 2005; and
(xvs) any real property or interest in real property other than the Transferred Real Propertyassets set forth on Schedule 1.2(s).
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.01(a) to the contrary2.1(a), no Designated Purchaser shall purchase will not purchase, assume or otherwise acquire any rightassets of the HSBC Sellers or any of their respective Affiliates that are not expressly included in the Purchased Assets (collectively, title and interest in or to any the “Excluded Assets”), including, by way of example only, the following assets, rights properties, rights, Contracts and claims, wherever located, whether tangible or properties intangible, real, personal or mixed:
(1) all assets, properties, rights, Contracts and claims, including Loans and extensions of ▇▇▇▇▇▇credit in process, Seller or their respective Affiliateswherever located, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for primarily related to the Purchased Assets Retained Businesses;
(2) other than the “Real Property Leases and ATM Real Property Leases, all leases, subleases, licenses or other Contracts pursuant to which the HSBC Sellers or any of their respective Affiliates leases, subleases or licenses real property;
(3) all Nonperforming Loans, Loans to Retained Employees and Loans originated with or guaranteed by the Veterans’ Administration or the Federal Housing Administration;
(4) the Excluded Assets”)Contracts;
(5) all assets related to employee benefit arrangements of any HSBC Seller or any of their respective Affiliates, including the following:Employee Plans;
(i6) all cash Intellectual Property of the HSBC Sellers and Cash Equivalentstheir respective Affiliates, including all right, title and interest in and to all proprietary or licensed software, systems or programs or computer software agreements of the HSBC Sellers and their respective Affiliates, including any cash rights (ownership, licensed or Cash Equivalents residing in otherwise) to any collateral account securing of the HSBC Entity Names and any obligation other Trademarks of the HSBC Sellers or contingent obligationtheir respective Affiliates, including those identified on Schedule 2.1(b)(6);
(ii7) any all books, records and other data that cannot, without unreasonable effort or expense, be separated from books and records maintained by the HSBC Sellers or their respective Affiliates in connection with the Retained Businesses or to the extent that such books, records and other data relate to Excluded Assets, Excluded Liabilities or Business Employees or Affiliated Employees who do not become Transferred Business Employees, and all Accounts Receivablepersonnel files and records; provided that, to the extent permitted under, and in accordance with, Section 7.1(c), Assignor shall use commercially reasonable efforts to cause the HSBC Sellers to provide Purchaser with access to any such books, records and other data for which the above-referenced separation would cause the HSBC Sellers to incur unreasonable effort or expense;
(iii) any Contracts used in 8) all licenses, charters, and legal entities of the Triage Business that relate to the division, corporate office, overhead HSBC Sellers or back-office functions of Seller and its their respective Affiliates;
(iv9) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)Retained In-Process Loans;
(v10) all Intellectual Property other than (A) the Transferred Intellectual Property, credit card accounts and (B) the Additional Assigned Intellectual Propertyreceivables;
(vi11) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)Restricted Items;
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii12) the Registrations used in the manufacturing Letters of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real PropertyCredit.
Appears in 1 contract
Sources: Assignment, Purchase and Assumption Agreement (Community Bank System Inc)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to The Acquired Assets do not include any assets, rights properties, rights, contracts or properties claims other than those specifically listed or described in Section 2.01, and, without limiting the generality of ▇▇▇▇▇▇the foregoing, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including expressly exclude the following:
(ia) all cash, cash equivalents, marketable securities, bank accounts, lockboxes and Cash Equivalentsdeposits of, including and any rights or interests in, the cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions management system of Seller and its Affiliates;
(ivb) except all accounts and notes receivable of the Business arising prior to the extent Closing Date and any collateral or other security relating thereto and all proceeds thereof;
(c) all rights, title and interest in any real property owned or leased by Seller or its Affiliates, together with the buildings, structures, fixtures and all other improvements on such real property, including the facilities used by Seller or its Affiliates in the operation of the Business;
(d) all minute books, records, files, documents and papers, whether in hard copy or electronic format, prepared in connection with this Agreement or the transactions contemplated hereby and all minute books and other corporate books and records, Tax Returns and work papers, accounting records and related notes, worksheets, files or documents of Seller and its Affiliates and any documents prepared in connection with the transactions contemplated by this Agreement or any Ancillary Agreement;
(e) all raw materials, work in progress and product supplies and all machinery, equipment, furniture, furnishings, fixtures, tools and other tangible personal property other than the Inventory and Equipment;
(f) all intellectual property assets or rights that are not included in the Purchased Assets under Section 2.01(a)(vAcquired Assets, including (i) all rights to use each of the “KRAFT”, “NABISCO” and “CHRISTIE” trade name or Section 2.01(a)(xviii)trademark, any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described derivation thereof and all associated goodwill and (ii) the trademarks identified on Schedule 2.01(b)(iv2.02(f);
(vg) except as otherwise provided in Section 2.01(c)(v), all Intellectual Property content appearing on ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees website of Seller or its Affiliates;
(h) except as otherwise provided in Section 7.02(b), all rights of Seller and its Affiliates under any Contract other than the Transferred EmployeesAssigned Contracts;
(ixi) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Contracts between Seller Plan or any similar benefit planAffiliate of Seller, program or arrangement that is maintained or contributed to by any on the one hand, and Seller or any Affiliate of Seller, on the other hand (the “Related Party Contracts”), and all inter-company receivables owed by Seller or an Affiliate of Seller to Seller or an Affiliate of Seller;
(xij) subject all UPC bar codes other than the Assigned UPC Codes;
(k) all assets used in connection with the centralized management functions provided by Seller or any of its Affiliates;
(l) all Employee Benefit Plans and Arrangements and any trusts, insurance arrangements or other assets held pursuant to, or set aside to fund the obligations of Seller or any of its Affiliates under, any Employee Benefit Plans and Arrangements;
(m) all insurance policies relating to the provisions Business and all claims, credits, causes of Article VIII, any right action or rights thereunder and proceeds thereof;
(n) all claims and rights to any refund receive Tax refunds or credit with respect to Taxes credits relating to the operation or ownership of the Business or any Acquired Assets for any Pre-Closing Tax Periodperiod;
(xiio) except to the Registrations used in the manufacturing of the Products extent expressly set forth on Schedule 2.01(b)(xii2.01(c)(v), all application systems and software, including all computer software, programs and source disks, and related program documentation, tapes, manuals, forms, guides and other materials, computer hardware and other systems hardware and networking and communications assets, including servers, databases, backups and peripherals;
(xiiip) all claimsSeller’s rights under this Agreement and the Ancillary Agreements, counterclaimsand the transactions contemplated hereby and thereby;
(q) any Acquired Assets sold or otherwise disposed of in the Ordinary Course of Business during the period from the Effective Date until the Closing Date;
(r) any shares of capital stock, causes partnership, membership or other debt or equity securities or other interests in any Person;
(s) any works of actionart listed on Schedule 2.02(s) (“Works of Art”), choses in action, rights of recovery, subject to the limitations and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described Buyer set forth in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)7.05; and
(xvt) any real property or interest other assets (including any related claims) that are not described in real property other than Section 2.01 (clauses (a) through (t), collectively, the Transferred Real Property“Excluded Assets”).
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrary2.1, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇▇ expressly understands and agrees that Buyer is not purchasing or acquiring, and Seller is not selling or their respective Affiliatesassigning, regardless any of kindthe following assets, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets properties and rights of Sellers (the “Excluded Assets”)):
(a) The Wind Down Cash and any cash received in connection with any of the other Excluded Assets, including any Tax refund;
(b) all bank accounts of Sellers;
(c) all deposits with American Express or deposits that constitute Excluded Utility Deposits;
(d) all of Sellers’ certificates of formation or certificates of incorporation and other organizational documents, qualifications to conduct business as a foreign entity, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books, unit certificates and other documents relating to the following:organization, maintenance and existence of any Seller as a limited liability company, corporation or other entity;
(e) all equity securities of any Seller or securities convertible into, exchangeable, or exercisable for any such equity securities and all net operating losses of any Seller;
(f) all Leases (and related Leased Real Property) and Contracts, in each case, other than the Assumed Contracts;
(g) the Excluded Claims;
(h) any loans or notes payable to any Seller or any of its Affiliates from any employee of any Seller or any of its Affiliates (other than Ordinary Course of Business employee advances and other than loans or notes from any Transferred Employees);
(i) any (1) Records containing confidential personal private information including confidential personnel and medical Records pertaining to any Current Employees or Former Employees to the extent the disclosure of such information to Buyer is prohibited by applicable Law, (2) other Records that Sellers are required by Law to retain and (3) any Records or other documents relating to the Chapter 11 Cases that are protected by the attorney-client privilege; provided that Buyer shall have the right to make copies of any portions of such retained Records (other than the Records referenced in subsection (3)) to the extent that such portions relate to the Business or any Purchased Asset;
(j) all cash Permits other than the Assumed Permits;
(k) all directors’ and Cash Equivalentsofficers’ liability insurance policies, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the divisiontail insurance policies, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect theretoto any such insurance policies, including all insurance proceeds received or receivable thereunderany recoveries thereunder and any rights to assess claims seeking any such recoveries;
(viiil) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described except as provided in Section 2.01(a)(xviii) 2.3(c), all assets, rights and claims arising from or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating of any Seller, including all rights arising from any refunds due from federal, state and/or local Governmental Entities with respect to any Pre-Taxes paid by Sellers, all deferred tax assets, Tax deposits, Tax prepayments and estimated Tax payments, in each case for Taxes owed the Sellers for periods ending on or prior to the Closing Tax PeriodDate;
(xiim) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii)all Insurance Policies and any prepaid premiums with respect thereto;
(xiiin) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the assets expressly excluded from Purchased Assets pursuant to Section 2.01(a)(xx2.1;
(o) all Employee Benefit Plans and trusts, Insurance Policies, rights and other assets set aside and specifically reserved solely to fund benefits payable under the applicable Employee Benefit Plan;
(p) the assets listed on Schedule 2.2(p); and
(xvq) any real property the rights of Sellers under this Agreement and the Related Agreements and all cash and non-cash consideration payable or interest in real property other than the Transferred Real Propertydeliverable to Sellers under this Agreement.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Priority Technology Holdings, Inc.)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to Seller and the contrarySeller Entities shall retain all of their existing assets, no Designated Purchaser shall purchase or otherwise acquire any rightproperties, rights, title and interest interests in or and to, and there shall be excluded from the Transfer to any assetsBuyer hereunder, rights or properties of ▇▇▇▇▇▇and the Transferred Assets shall not include the following (collectively, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”):
(a) all Cash and Restricted Cash, bank accounts and lockboxes of Seller and the Seller Entities;
(b) subject to Section 5.8(b), all Insurance Policies and binders of Seller and the Seller Entities, and all rights of action, lawsuits, benefits, claims, demands, rights of recovery and set-off, and proceeds, under or with respect to such Insurance Policies;
(c) all Intellectual Property owned by Seller or any of its Affiliates (other than the Transferred IP), including the following:Retained Names, any Intellectual Property in or to the technologies described on Section 2.3(c) of the Seller Disclosure Letter, and any Seller Licensed IP (collectively, the “Seller Retained IP”), including all rights of priority and renewals, all rights to sue for past, present, or future infringement, misappropriation or other violation thereof, and to retain any damages and profits due or accrued for any such past, present or future infringement, misappropriation or other violation;
(d) all Excluded Books and Records, wherever located;
(e) any asset which is not included as a Transferred Asset by virtue of the provisions of Section 2.2(a)-(q) by virtue of the express limitations set forth therein;
(f) all Tax assets (including duty and tax refunds and prepayments) of Seller or its Affiliates (other than any Transferred Subsidiary);
(g) all rights in connection with and assets of the Benefit Plans and any other employee benefit or compensation plan, program, policy, agreement or arrangement sponsored or maintained by Seller or its Affiliates (other than the Assumed Plans);
(h) all invoices, shipping documents, purchase orders and other preprinted business forms that do not have any Transferred Trademark thereon and are not Related to the Business;
(i) all cash credits, prepaid expenses, deferred charges, advance payments, security deposits, prepaid items and Cash Equivalentsduties to the extent not related to a Transferred Asset or Transferred Subsidiary;
(j) all Intracompany Receivables;
(k) all licenses to Seller or any of its Affiliates with respect to Software and related databases and all Seller Owned Software;
(l) all corporate-wide or division-wide systems, properties and assets, including management information systems and software, computer and communications systems and software and related third-party software, internet protocol address spaces, voicemail, and messaging systems and related Intellectual Property and technology and assets, including the assets that shall be utilized by Seller in providing services to Buyer under the Transition Services Agreement;
(m) all confidential communications between Seller and any of its Affiliates and its legal counsel and other advisors solely to the extent arising out of or relating to the negotiation, execution or delivery of this Agreement or the Transaction (or the sales process relating to the potential sale of the Business), including any cash attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, in each case, including information or Cash Equivalents residing files in any collateral account securing any obligation or contingent obligationformat in connection therewith;
(iin) other than the Transferred Subsidiary Shares, any and all Accounts Receivableshares or other interests in any Person or any securities of any Person;
(iiio) subject to Section 5.18, all Commingled Contracts;
(p) all Contracts between the Seller and/or its Affiliates, on the one hand, and any Contracts used in product or service supplier, provider, vendor, contractor, or subcontractor, on the Triage Business other hand, that relate serve or are otherwise related to the divisionPSA Sites (including, corporate officefor the avoidance of doubt, overhead such Contracts that are Related to the Business);
(q) subject to Section 5.19, all Commingled Permits;
(r) all Contracts solely between Seller and any of its Affiliates (other than the Transferred Subsidiaries) or back-office functions between Affiliates of Seller (other than the Transferred Subsidiaries), whether arising before, on or after the Closing Date;
(s) all rights of, and all consideration received by, Seller and its Affiliates (other than the Transferred Subsidiaries) pursuant to, and all rights of Seller and its AffiliatesAffiliates (other than the Transferred Subsidiaries) under, this Agreement or any Ancillary Agreement, subject to the terms hereof and thereof;
(ivt) except to all assets set forth on Section 2.3(t) of the extent included in Seller Disclosure Letter;
(u) all accounts receivable of the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviiiBusiness (other than accounts receivable of the Transferred Subsidiaries), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);; and
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received Actions available to or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used being pursued by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) Entity to the extent related to the items described in this Section 2.01(b) any Excluded Assets or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx)Excluded Liabilities, including the remaining portion whether arising by way of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property counterclaim or interest in real property other than the Transferred Real Propertyotherwise, whether known or unknown, absolute or contingent, matured or unmatured, determined or undeterminable.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Goodyear Tire & Rubber Co /Oh/)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary set forth in this Agreement, no Designated Purchaser except for the assets and properties of the Business Companies that are transferred and conveyed indirectly to Buyer in the Share Sale (other than pursuant to Section 2.02(l)) and the Transferred Assets that are transferred and conveyed to Buyer in the Asset Sale, Parent and the other Parent Entities shall purchase or otherwise acquire any retain all of their right, title and interest in or and to, and there shall be excluded from the Sale to any Buyer hereunder, all the assets, properties or rights or properties of ▇▇▇▇▇▇Parent and the other Parent Entities (collectively, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”). Solely for purpose of non-exhaustive illustration, including the followingExcluded Assets shall include:
(ia) all cash assets, properties and Cash Equivalents, including rights of any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationParent Entity not Related to the Business;
(iib) any all Cash and all Accounts Receivable;
Cash Equivalents of Parent or another Parent Entity (iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included reflected in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(ivcalculation of the Final Closing Date Cash);
(vc) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts policies of any Parent Entity and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunderrecoveries thereunder and rights to assert claims with respect to any such insurance recoveries, subject to Section 5.17;
(viiid) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates Intellectual Property other than the Transferred EmployeesCompany-Owned Intellectual Property and Intellectual Property Assets;
(ixe) any rights, properties and assets used for the purpose of providing, or that otherwise consist of, Overhead and Shared Services and, other than as provided in the TSA, any rights of the Business to receive any Overhead and Shared Services from any Parent Entity;
(f) all other Information Technology Assets Tax assets (including duty and Tax refunds and prepayments) of any Parent Entity;
(g) any assets of or relating to any Benefit Plan (other than those described in Section 2.01(a)(xviii) any assets of or Section 2.01(a)(xixrelating to any Benefit Plan to the extent transferred pursuant to Section 5.06);
(xh) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of SellerShared Contracts;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiiii) all claimscredits, counterclaimsprepaid expenses, causes of actiondeferred charges, choses in actionadvance payments, rights of recoveryrefunds, security deposits, prepaid items and rights of set-off of any kind (including all damages and payments for pastduties, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described any asset that is not a Transferred Asset;
(j) all Intracompany Receivables;
(k) any and all accounts and notes receivable of Parent or another Parent Entity (other than accounts receivable referred to in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xviSection 2.01(b)(xii));
(xivl) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion assets listed on Section 2.02(l) of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Disclosure Schedule; and
(xvm) all rights of Parent and its Affiliates under, and all consideration received by Parent and its Affiliates pursuant to, this Agreement or any real property or interest in real property other than Transaction Document, subject to the Transferred Real Propertyterms hereof and thereof.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Sonoco Products Co)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary in this Agreement, in no Designated Purchaser event shall purchase Sellers be deemed to sell, transfer, assign, convey or otherwise acquire any deliver, and Sellers shall retain all right, title and interest to, in or to any assetsand under all properties, rights or properties rights, interests and other assets of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Sellers that are not Acquired Assets (the “Excluded Assets”), including the following:
(ia) all cash rights, properties and other assets explicitly excluded from Section 1.1 and all bank accounts (but not, for the avoidance of doubt, any Cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
of Sellers (ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviiiother than Tupperware Nederland B.V.), any Contracts pursuant subject to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(ivSection 1.6);
(vb) all Intellectual Property rights, properties and other than (A) assets of the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual PropertyCash Consideration Sellers that are not Cash Acquired Assets;
(vic) subject to Section 1.5, all Contracts of Sellers that are not Assigned Contracts (collectively, the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi“Excluded Contracts”);
(viid) (i) all current real property owned by any Seller (together with all of Sellers’ right, title and interest in and to all land, buildings, structures, easements, appurtenances and improvements thereto, the “Excluded Owned Real Property”) and (ii) all Leases pursuant to which any Seller holds any Real Property (the “Excluded Leases”, and such real property, together with all of such Seller’s right, title and interest in and to all land, buildings, structure, easements, appurtenances and improvements thereon, the “Excluded Leased Real Property” and together with the Excluded Owned Real Property, the “Excluded Real Property”);
(e) all Documents (including information stored on the computer systems, data networks or servers of any Seller) (i) to the extent they relate solely to any of the Excluded Assets or Excluded Liabilities, (ii) that are Sellers’ financial accounting Documents, all minute books, Organizational Documents, stock certificates or other Equity Interests instrument, stock registers and such other books and records of any Seller pertaining to the ownership, organization or existence of such Seller, Tax Returns and records (and any related work papers) (other than books, records and, Tax Returns of any Acquired Entity), corporate seal, checkbooks, and canceled checks, (iii) that any Seller is required by Law to retain or (iv) that are governed under applicable Privacy Laws that prohibit the transfer or sale of Personal Information (other than to the extent held by any Acquired Entity); provided that Purchaser shall have the right to make copies of any reasonably relevant portions of such Documents (other than Excluded Tax Returns) to the extent not prohibited by applicable Law or if consented to by the relevant Seller (“Excluded Documents”);
(f) all documents prepared or received by any Seller or any of its Affiliates or on their behalf in connection with the sale of the Acquired Assets, this Agreement or the other Transaction Agreements, the Transactions, or the Bankruptcy Cases, including (i) all records and reports prepared or received by Sellers or any of their respective Affiliates or Advisors in connection with the sale of the Acquired Assets and the Transactions, including all analyses relating to the business of any Seller or its Affiliates so prepared or received, (ii) all bids and expressions of interest received from third parties with respect to the acquisition of any of Sellers’ businesses or assets, (iii) all privileged materials, documents and records of any Seller or any of its Affiliates, including any privileged materials, documents and records that are in the possession of any Acquired Entity, (iv) copies of the documents, materials and data related to the Acquired Assets or Assumed Liabilities prior to the Closing Date, (v) confidentiality agreements with prospective purchasers of the Acquired Assets or the Assumed Liabilities or any portion thereof, and (vi) any other files or records to the extent relating exclusively to any Excluded Assets, Excluded Liabilities or the Bankruptcy Cases;
(g) all Employee Benefit Plans of any Seller or its Affiliates (except for the Acquired Entity Benefit Plans);
(h) all director and officer insurance Contracts policies, and all rights and benefits of any nature of Sellers or its Affiliates with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computersrecoveries thereunder and rights to assert claims with respect to any such insurance recoveries, laptops, tablets, mobile phones and similar assets primarily used except as contemplated by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix1.1(g);
(xi) all assets Equity Interests of any Seller Plan or any similar benefit planof their respective Subsidiaries, program or arrangement that is maintained or contributed to in all cases, other than any of the foregoing issued by any Seller or Affiliate of Seller;
Acquired Entity (xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii“Excluded Subsidiaries”);
(xiiij) other than claims released pursuant to Section 6.11, the Purchased Claims and the Acquired Avoidance Actions, (i) all preference or avoidance claims or actions arising under the Bankruptcy Code or applicable Law relating to Excluded Assets or Excluded Liabilities, (ii) all other rights, claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off off, and rights of recoupment as of the Closing of any kind (including all damages and payments for pastSeller, present in each case, arising out of or future infringement relating to events occurring on or misappropriation of Intellectual Property, prior to the right Closing Date relating to use and recover for past infringements any Excluded Assets or misappropriations of Intellectual PropertyExcluded Liabilities, and (iii) all claims that any and all corresponding rights that Seller may have been, now or hereafter may be secured throughout the world against any Person with respect to any Intellectual Propertyother Excluded Assets or any Excluded Liabilities, in each case of (i)-(iii), other than the those listed in Sections 1.1(g) - 1.1(j);
(k) Sellers’ claims, causes of action or other rights under this Agreement, including the Purchase Price hereunder, or any agreement, certificate, instrument, or other document executed and delivered between any Seller or its Affiliates and Purchaser in connection with the Transactions, or any other agreement between any Seller or its Affiliates and Purchaser entered into on or after the date hereof;
(l) all Tax refunds, Tax attributes and Tax assets, other than (i) Tax assets that transfer to Purchaser by automatic operation of law as a result of Purchaser acquiring the extent related Acquired Assets, and (ii) Tax refunds, Tax attributes and Tax assets attributable directly to the items described in this Section 2.01(b) or any Acquired Entity and not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)a Seller Combined Tax Return; and
(xvm) any real property every asset of Sellers or interest their Affiliates that would otherwise constitute an Acquired Asset (if owned immediately prior to the Closing) if conveyed or otherwise disposed of during the period from the date hereof until the Closing Date (i) in real property other than the Transferred Real PropertyOrdinary Course, or (ii) as otherwise permitted by the terms of this Agreement. To the extent that an asset may be viewed as both an Acquired Asset and an Excluded Asset, it shall be deemed an Acquired Asset.
Appears in 1 contract
Excluded Assets. Notwithstanding anything the provisions of Section 1.1 above, the following assets and properties are to be retained by Seller and shall not constitute Acquired Assets (collectively, the “Excluded Assets”):
(a) all real property, buildings, structures and improvements thereon, whether owned or leased by Seller, all fixtures and fittings attached thereto, but not including any of the Tangible Assets, and all security deposits with respect to any leased properties other than those explicitly included in Section 2.01(athe Acquired Assets;
(b) to the contrary, no Designated Purchaser shall purchase or otherwise acquire any all right, title and interest in, to and under all Contracts to which Seller is a party or by which Seller or any of its assets or properties is otherwise subject to or bound other than the Assigned Contracts;
(c) all capital stock or other equity interest in Seller or any Subsidiary, Affiliate or other Person, and all options, warrants or other rights to acquire such capital stock or other equity;
(d) all right, title and interest to any assetsvehicles owned, leased or used by the Seller;
(e) all right, title and interest to all insurance policies of Seller;
(f) all minute books and stock records of Seller;
(g) all personnel records of all employees other than Transferred Employees;
(h) all rights of Seller and Seller Parent under this Agreement and the Related Agreements or properties arising from the consummation of ▇▇▇▇▇▇, Seller the transactions contemplated hereby or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:thereby;
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationEmployee Benefit Plans;
(iij) any and all Accounts Receivablethe Southborough Lease;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(vk) all Intellectual Property other than (A) the Transferred Intellectual Property, bank and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate brokerage accounts of Seller;
(xil) subject to the provisions all Tax records of Article VIIISeller;
(m) all rights, any right to any refund claims or credit with respect to Taxes credits of Seller relating to any Pre-Closing Tax PeriodExcluded Asset or Excluded Liability;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiiin) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)cash; and
(xvo) any real property or interest in real property other than all inventory of the Transferred Real PropertyUAV Business.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ballard Power Systems Inc.)
Excluded Assets. Notwithstanding anything any provision in Section 2.01(a) this Acquisition Agreement or any other writing to the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any all other assets, rights or properties of ▇▇▇▇▇▇properties, rights, licenses and businesses owned by Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”)) shall be retained by Seller and shall be excluded from the Purchased Assets, including all of the following:
(a) cash and cash equivalents (other than: (i) all cash and Cash Equivalentscash equivalents in amount equal to the sum of the Managed Services Transfer Amount and the Estimated Deficiency Amount if there was an Estimated Deficiency Amount and Buyer has not made an EDA Set-Off Election, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any cash and all Accounts Receivable;
(iii) any Contracts used cash equivalents in the Triage Business that relate amount equal to the division, corporate office, overhead or backManaged Services Transfer Amount minus the Estimated Excess Amount if (A) there was an Estimated Excess Amount and (B) Buyer has not made an EEA Set-office functions of Seller Off Election and its Affiliates;
(ivC) except to the extent included in Estimated Excess Amount is less than the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(ivManaged Services Transfer Amount);
(vb) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Propertyintercompany accounts receivable;
(vic) any assets used by Seller in connection with businesses (including the machineryContinuing Business) other than the ICS Business, equipmentprovided that such assets are not primarily used in, mechanical and spare partsor necessary for, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)the ICS Business;
(viid) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than Assets relating to the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate Benefit Plans of Seller;
(xie) subject any Assets which primarily relate to the provisions of Article VIII, any right or primarily correspond to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Perioda Retained Liability;
(xiif) the Registrations used in the manufacturing all trademarks, service marks, trade names, corporate names, brand names, domain names, logos or other designations of the Products set forth on Schedule 2.01(b)(xiiSeller, other than those transferred pursuant to Section 2.1(h);
(xiiig) all claims, counterclaims, causes real property interests of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or Seller not otherwise included in Purchased Assets under Section 2.01(a)(xviset forth on Exhibit 2.1(c);
(xivh) the issued and outstanding shares of stock of any Subsidiary of Seller (other than the outstanding shares (or similar equity interests) of the Irish Entity);
(i) any Assets used by any of Seller’s strategic business units (other than the ICS Business Segment), provided that such Assets are not primarily used in, or necessary for the operation of, the ICS Business;
(j) all cells lines rights of Seller in, to and under all Licenses and Permits not transferred to Buyer pursuant to Section 2.1(k);
(k) other than those described in Section 2.01(a)(xx), including the remaining portion any and all assets part of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx2.1(m), any Contracts of insurance, any insurance policies held by Seller or any of its Affiliates (the “Insurance Policies”), or any related prepaid Assets in respect of the ICS Business (including prepaid insurance attributable to insurance coverage provided by Seller which will not continue following the Closing Date);
(l) any marketing materials of Seller (including any photographs displayed on Seller’s website, proposals, presentation materials or otherwise), but only to the extent such marketing materials do not contain any trademarks, service marks, trade names, corporate names, brand names, domain names, logos, designations or any other Intellectual Property transferred pursuant to Section 2.1(h);
(m) all rights of Seller in, to and under Contracts that are not Assumed Contracts, Assumed Real Property Leases or Covered Leases with respect to the Covered Equipment; and
(xvn) any real property or interest in real property other than the Transferred Real PropertyAssets set forth on Exhibit 2.2(n).
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.01(a1.1 or elsewhere in this Agreement, the following assets of the Seller are not part of the sale and purchase contemplated hereunder, are excluded from the Purchased Assets and shall remain the property of the Seller after the Closing (collectively, the “Excluded Assets”):
(a) all rights and authorities relating to the contraryEthereum validator;
(b) all rights and authorities relating to the Gnosis validator;
(c) all rights and authorities relating to the Picasso validator;
(d) all rights and authorities relating to the Eigenlayer operator;
(e) credit agreements, no Designated Purchaser shall purchase or otherwise acquire bank agreements, promissory notes, guarantees, letters of credit, letters of guarantee, negotiable instruments, any rightlease of any property that would be required to be classified and accounted for as a capital lease in accordance with generally accepted accounting principles and any mortgages and other security agreements that create an Encumbrance;
(f) all claims for and rights to receive refund of taxes and other governmental charges relating to the Business for any periods arising prior to the Closing Date;
(g) all claims, title and interest in or to any assetsactions, deposits, prepayments, refunds, causes of action, rights of recovery, rights of set off, and rights of recoupment of any kind or properties nature (including any such item relating to taxes) relating to the Purchased Assets arising prior to the Closing Date or relating to the Excluded Assets;
(h) the Purchase Price and all other rights of the Seller under this Agreement, any Transfer Document to which Seller is a party, and any other agreements entered into by the Seller pursuant to this Agreement;
(i) all contracts with any independent contractors or employees of the Seller prior to the Closing Date;
(j) all cash and digital assets and/or tokens owned or held by the Seller, other than the ones held in the identity account located in the Public Key described in Section 1.1(a)(i)(A);
(k) all bank accounts or similar accounts of the Seller;
(l) all contracts that are not Assumed Contracts;
(m) all books and records of the Seller, including, without limitation, tax returns relating to the Excluded Assets or Excluded Liabilities, the Seller’s governing documents, minute books and company seals of the Seller, and any documentation contained within the Seller’s systems that are not used solely in connection with the Business, other than the Business Records;
(n) any of the Seller’s employee and personnel records, files, papers, data and related information, including any correspondence related thereto, in whatever form;
(o) any equity interests of the Seller;
(p) all certificates for insurance, binders for insurance policies and insurance, and claims and rights thereunder and proceeds thereof;
(q) all rights to receive mail, email and other communications relating to the Excluded Assets;
(r) any attorney-client privilege and any documents or other information covered by attorney-client privilege, the attorney work product doctrine or other similar protection with respect to this Agreement, any Transfer Document, any other agreement entered into or delivered in connection with this Agreement, and the transactions and matters contemplated hereby and thereby;
(s) all claims of the Seller against third parties relating to the Business or the Purchased Assets, whether ▇▇▇▇▇▇▇ or inchoate, Seller known or their respective Affiliatesunknown, regardless of kind, description contingent or location or whether tangible or intangible, real, personal or mixed, except non- contingent for any period prior to the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationClosing Date;
(iit) any right to, claim to, or interest in any and all Accounts Receivable;airdrops relating to the Business of any and all digital assets distributed or claimable prior to the Closing Date;
(iiiu) any Contracts used right to, claim to, or interest in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller Paladin tokens and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)and all airdrops relating thereto;
(v) all Intellectual Property other than (A) hardware owned by the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Hardware; and
(xvw) any real other right, property or interest in real property other than asset of the Transferred Real Property.Seller that is not a Purchased Asset.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Assets. Notwithstanding anything in The parties expressly understand and agree that the Purchased Assets shall not include, and no Asset Selling Entity is selling, assigning, transferring or conveying to any Purchaser, any right or title to or interest in, any of the following assets, properties, rights, Contracts and claims, whether tangible or intangible, real, personal or mixed (collectively, the “Excluded Assets”):
(a) all cash, cash equivalents, bank deposits, investment accounts, lockboxes, certificates of deposit, marketable securities or similar cash items, of such Asset Selling Entity;
(b) subject to Section 2.01(a10.1 through 10.4, any assets of an Employee Benefit Plan other than an Acquired Company Benefit Plan, including, any trusts, insurance arrangements or other assets held pursuant to, or set aside to fund the obligations of each Asset Selling Entity or its Affiliates under, any such Employee Benefit Plan, and any data and records (or copies thereof) required to administer the contrarybenefits of Business Employees under any such Employee Benefit Plan;
(c) any and all insurance policies, no Designated Purchaser shall purchase or otherwise acquire any binders and claims and rights thereunder and the proceeds thereof and all prepaid insurance premiums;
(d) subject to Section 7.7, all right, title and interest of each Asset Selling Entity and its Affiliates in all Intellectual Property other than Purchased Intellectual Property (the “Excluded Intellectual Property”);
(e) all tangible personal property disposed of or to any consumed in the ordinary course of business between the date hereof and the Closing Date as permitted by this Agreement;
(f) the assets, Real Property Leases and Contracts of the Asset Selling Entities listed on Schedule 1.4(f);
(g) all rights and incidents in, to and under any Retention Agreements other than Assumed Retention Agreements;
(h) any books, records and other materials that any Asset Selling Entity or properties any of its Affiliates is required by Law to retain all Tax Returns (subject to Section 15.5) and related work papers and all “D▇▇▇▇▇▇” marked sales and promotional materials and brochures (subject to Section 7.7);
(i) all claims, Seller counterclaims, defenses, causes of action, choses in action or their respective Affiliatesclaims of any kind relating primarily to either Excluded Assets or Excluded Liabilities;
(j) all assets, regardless business lines, properties, rights, Contracts and claims of kindany Asset Selling Entity not primarily related to the FPG Business, description or location or wherever located, whether tangible or intangible, real, personal or mixed;
(k) except as set forth in Section 1.3(a), all assets associated with facilities related to the FPG Business which have ceased operations prior to the date hereof;
(l) all refunds, credits, prepayments or deferrals of or against any Excluded Taxes;
(m) except for the Purchased Assets (the “Excluded Assets”)Transferred Intercompany Receivables, including the following:
all intercompany receivables, loans and investments (i) all cash between any Asset Selling Entity, on the one hand, and Cash Equivalentsany other Seller or any of its Affiliates, including any cash on the other hand, or Cash Equivalents residing (ii) required to be settled in any collateral account securing any obligation or contingent obligationaccordance with Section 6.7;
(iin) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described notes receivable listed on Schedule 2.01(b)(iv1.4(n);
(vo) any and all Intellectual Property other than causes of action arising under Sections 510, 544 through 550 and 553 of the Bankruptcy Code or under similar state laws; and
(Ap) except as set forth in Section 1.3(m), or otherwise arising from the Transferred Purchased Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaimsdefenses, causes of actionactions, choses in action, rights of recovery, rights of set off and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Propertyrecoupment.
Appears in 1 contract
Excluded Assets. Notwithstanding anything It is expressly understood and agreed that the Assets --------------- shall not include the following (each, an "Excluded Asset"): --------------
(a) All assets and other rights (including, without limitation, all rights, properties, claims, contracts and business) used in Section 2.01(awhole or in part by any business conducted by Seller other than the Business;
(b) All Intellectual Property of Seller or any of its Affiliates not included on Schedule 2.1(a)(i) and all licenses and other agreement to which ------------------ Seller or any of its Affiliates is a party or by which Seller or any of its Affiliates is bound relating to Intellectual Property not included on Schedule -------- 2.1(a)(ii). -----------
(c) All management information systems and software;
(d) The capital stock or equity interests of all subsidiaries, joint ventures or investments of Seller;
(e) Cash and cash equivalents or similar type investments, bank accounts, certificates of deposit, Treasury bills and other marketable securities of Seller;
(f) All real property, leasehold interests in real property and fixtures of Seller or any of its Affiliates and all equipment, machinery, vehicles, tools and other tangible personal property (other than the Transferred Equipment) of the Seller;
(g) Accounts receivable and other receivables of the Seller or any of its Affiliates in existence at the Closing Date (whether or not billed) to the contrary, no Designated Purchaser shall purchase extent attributable to the Business or otherwise acquire any right, title and interest in or to any assets, rights or properties other business of ▇▇▇▇▇▇, Seller or their respective any of its Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(iih) any The corporate books and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions records of Seller and its Affiliates, including minute books and stock ledgers, and copies of business records included in the Assets acquired by Buyer that are reasonably required by Seller or any Affiliate of Seller in order to permit Seller or any of its Affiliates to prepare any Tax Return or other filing or report to be made after the Closing Date;
(ivi) except Any assets of any employee benefit plan and any rights under any plan or agreement relating to the extent included employee benefits, employment or compensation of Seller and its Affiliates unless otherwise provided in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)7;
(vj) all Intellectual Property other than (A) Any rights of Seller, its Affiliates or the Transferred Intellectual Property, and (B) Business which are contingent on the Additional Assigned Intellectual Propertysatisfaction of liabilities or obligations that are Excluded Liabilities;
(vik) All claims which Seller or any of its Affiliates may have on or after the machinerydate hereof, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)against any Governmental Authority for refund or credit of any type with respect to income Taxes;
(viil) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of All claims which Seller or any of its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of may have against any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world Person with respect to any Intellectual PropertyExcluded Liabilities or Excluded Assets;
(m) Insurance policies and any prepaid premiums thereon and the cash surrender value thereof,
(n) Any assets sold or otherwise disposed of not in violation of any provisions of this Agreement during the period from the date hereof until the Closing;
(o) Any rights of Seller under this Agreement and any agreement relating hereto between Seller and Buyer;
(p) Any insurance recoveries, to the extent related relating to the items described in this Section 2.01(b) Excluded Assets or not otherwise included in Purchased Assets under Section 2.01(a)(xvi)the Excluded Liabilities;
(xivq) Any and all cells lines portions or parts of the software listed on Schedule 2.1(a)(i) that Seller has individually incorporated into other than those described in Section 2.01(a)(xx), including programs before the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Closing; and
(xvr) any real property or interest in real property The assets, agreements and other than the Transferred Real Property.rights identified on Schedule -------- 2.2(r) hereto. ------
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary in this Agreement, no Designated Purchaser Buyer expressly understands and agrees that it is not purchasing or acquiring, and Seller is not selling, assigning or transferring, any properties, rights or assets of Seller other than the Acquired Assets, and all such other properties, rights and assets shall purchase or otherwise acquire any be excluded from the Acquired Assets (collectively, the “Excluded Assets”). The Excluded Assets to be retained by Seller include all of Seller’s right, title and interest in or and to any assetsthe following properties, rights and assets:
(a) As identified on Schedule 2.2(a) or properties in the Asset Demarcation Agreement, the real and personal property comprising or constituting any or all of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased T&D Assets (the whether or not regarded as a “Excluded Assets”transmission,” “distribution” or “generation” asset for regulatory or accounting purposes), including all electric power, communications and telecommunications underground and aboveground lines, switchyard facilities, substation facilities, support equipment and other Improvements, the following:Reserved Easements, and all Permits and Contracts, to the extent they relate to the T&D Assets, and those certain assets and facilities identified for use or used by Seller or others pursuant to an agreement or agreements with Seller for telecommunications purposes;
(b) The real property and Improvements thereon described in Schedule 2.2(b);
(c) Except for Prepayments, (i) all cash Cash, accounts receivable, notes receivable, checkbooks and Cash Equivalentscanceled checks, including any cash bank accounts and deposits, commercial paper, certificates of deposit, securities, and property or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
income Tax receivables, and (ii) any and all Accounts Receivableother Tax refunds, credits, prepayments or other rights to payment related to the Acquired Assets to the extent allocable to a period ending on or before the Closing Date; Leases;
(iiif) any All Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller other than the Assigned Contracts and its Affiliates;
(iv) except to Assigned All Permits of Seller other than the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Transferable Permits; All Intellectual Property are granted to any Asset including all Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property Marks other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vig) Duplicate copies of all Transferred Books and Records (to the machineryextent and subject to the conditions set forth herein), equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees other records of Seller or its Affiliates other than the Transferred EmployeesBooks and Records, including corporate seals, organizational documents, minute books, stock books, Tax Returns, financial records, books of account and other corporate records of Seller, and all employee-related or employee benefit-related files or records other than the Transferred Employee Records;
(ixi) all other Information Technology Assets other than those described All insurance policies of Seller and insurance proceeds therefrom; All rights of Seller in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right and to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off off, rights of any kind (including all damages refund and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding similar rights that have been, now or hereafter may be secured throughout the world with respect against a Third Party relating to any Intellectual Property) period through the Closing or otherwise relating to any Excluded Liability, but excluding any such rights of Seller to the extent related relating to an Assumed Liability;
(j) All of Seller’s rights arising from or associated with any Contract or the items described in this Section 2.01(b) provisions of goods or services, payment arrangements, intercompany charges or balances or the like, including, but not otherwise included in Purchased Assets under Section 2.01(a)(xvilimited to, the Terminated Contracts (“Intercompany Arrangements”), other than those Assigned Contracts set forth on Schedule 2.2(j);
(xivk) all cells lines All Employee Benefit Plans and trusts or other than those described in Section 2.01(a)(xx)assets attributable thereto;
(l) All assets of Seller related to its ownership, construction and operation of a portfolio of thermal electric generation assets and related facilities, together with fuel inventories, and including generating, selling, transmitting and delivering electric energy, capacity, ancillary services and Environmental Attributes from the remaining portion of any cell line of which an aliquot thereof is included generation assets to the interconnection point set forth in the Purchased Assets pursuant to Section 2.01(a)(xx)respective Interconnection Agreements; and
(xvm) any real property The rights that accrue or interest in real property other than will accrue to Seller under this Agreement and the Transferred Real PropertyRelated Agreements.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary contained in this Agreement, no Designated Purchaser and regardless of whether such asset is disclosed herein or on any Schedule or Exhibit hereto (except solely to the extent constituting the Acquired Assets), Buyer shall purchase not acquire any interest in or otherwise acquire to, or any right, title and or interest in or to any assets, properties or rights other than the Acquired Assets (such other assets, properties or properties of ▇▇▇▇▇▇rights, Seller or their respective Affiliateswhether tangible, regardless of kind, description or location or whether tangible or intangible, realreal or personal and wherever located, personal or mixedcollectively, except for the Purchased Assets (the “Excluded Assets”). For the avoidance of doubt, including and notwithstanding anything to the followingcontrary in Section 1.1(a), all of the following assets, properties and rights are Excluded Assets, regardless of whether such assets relate to the Business:
(i) all cash and Cash Equivalents, including Seller’s rights under or pursuant to this Agreement or any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationof the Ancillary Documents;
(ii) any right to receive mail and all Accounts Receivableother communications addressed to Seller relating to the Excluded Assets or the Excluded Liabilities (as defined herein);
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions all rights of Seller under all Contracts between Seller, on the one hand, and its Affiliatesany Affiliate of Seller, on the other hand, and any other Contract listed on Exhibit 1.1(b)(iii) (collectively, the “Excluded Contracts”);
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)Rights other than the Transferred Intellectual Property;
(v) all Intellectual Property any Authorizations other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual PropertyAuthorizations;
(vi) the any equipment, systems, hardware, furniture, furnishings, fixtures, machinery, equipmentvehicles, mechanical tools and spare partsother tangible personal property set forth on Exhibit 1.1(b)(vi) (collectively, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vithe “Excluded Equipment”);
(vii) all current any assets, properties and prior insurance Contracts rights used by Seller or any of its Affiliates primarily in connection with the provision of Overhead and all rights of any nature with respect theretoShared Services, including all insurance proceeds received or receivable thereunderany proprietary tools and processes;
(viii) all owned rights to refunds or leased desktop computerscredits in respect of Taxes arising from ownership, laptopsoperation or conduct of the Business or the Acquired Assets during any Tax period ending prior to the Closing, tablets, mobile phones and similar assets primarily used during any Pre-Closing Tax Period or arising from any payment made directly to any Tax authority by employees of Seller or its any of Seller’s Affiliates other than (such refunds or credits, the Transferred Employees“Excluded Tax Assets”);
(ix) all other Information Technology Assets other than those books and records not constituting Books and Records that relate primarily to the Business as described in Section 2.01(a)(xviii) 1.1(a)(ii), including any Capital Stock of any Person or Section 2.01(a)(xixany minute books and equity transfer records and similar company records, Tax Returns and other Tax-related documents (other than Tax Returns with respect to Property Taxes), books of account or other records having to do with the corporate organization of Seller or any of its Affiliates or relating to the process for the sale of the Business, all employee-related or employee benefit-related files or records and all Books and Records that Seller or any of its Affiliates is required to retain by applicable Law (including Laws relating to data protection);
(x) all assets any insurance policies maintained for the benefit of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller(“Insurance Policies”);
(xi) subject to the provisions any cause of Article VIIIaction, any claim, demand, right or privilege against one or more third parties that relates to any refund of the Excluded Assets or credit with respect to Taxes Excluded Liabilities, including causes of actions, claims and rights under insurance policies relating to any Pre-Closing Tax Periodthereto;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii)all Employee Benefit Plans, including any plans, trusts, Contracts, documents or agreements related thereto, and any retirement and pension plans, and any group medical, dental, life and long-term disability insurance policies maintained by Seller;
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, any bank accounts or investment accounts (or the Cash and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xxsecurities contained therein); and
(xvxiv) any real property assets, properties and rights not primarily relating to, or interest not primarily used or held for use by Seller or any of its Affiliates in real property other than connection with, the Transferred Real Propertyoperation of the Business.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(aBuyer expressly understands and agrees that the following assets of Parent and its Affiliates (the “Excluded Assets”) shall be retained by Parent and its Affiliates (other than the Companies):
(i) the Corporate Shared Services;
(ii) (A) all cash and cash equivalents other than Company Cash and (B) all rights to any bank accounts other than the contraryTransferred Bank Accounts;
(iii) Tax assets (including any rights to any Tax refunds or credits) and all Tax Returns (i) of Parent and its Affiliates (other than the Companies and their respective Subsidiaries), no Designated Purchaser shall purchase including any Combined Tax Returns, or otherwise acquire (ii) relating to any Excluded Asset or the Retained Businesses;
(iv) all of Parent’s and its Affiliates’ right, title and interest in the Owned Real Property or Leased Real Property set forth on Schedule 2.2(a)(iv) and all improvements, fixtures and appurtenances thereto and rights in respect thereof;
(v) any employee benefit plans, programs, arrangements and Contracts (including any retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements and employment Contracts with Transferred Employees) sponsored or maintained by Parent or its Affiliates (other than a Company and other than any Company Benefit Plans);
(vi) subject to Buyer’s rights under Section 6.17(a), all Insurance Policies held by Parent or any of its Affiliates other than a Company;
(vii) all Actions (including counterclaims) and defenses against third parties to the extent relating to any assetsof the Excluded Assets or the Excluded Liabilities as well as any books, rights records and privileged information to the extent relating thereto;
(viii) all Intellectual Property of Parent or properties any of ▇▇▇▇▇▇, Seller or its Affiliates (other than the Companies and their respective AffiliatesSubsidiaries) to the extent not owned, regardless held or used primarily in the Business, including the Parent Marks;
(ix) any interest of kindParent or any Affiliate of Parent (other than the Companies and their respective Subsidiaries) under this Agreement or in any document, description certificate or location instrument delivered pursuant to or in connection with this Agreement;
(x) any personnel and employment records for employees and former employees of Parent or any Affiliate of Parent (other than the Companies) who are not Transferred Employees;
(xi) any other assets of Parent or any of its Affiliates (other than the Companies and their respective Subsidiaries) to the extent not primarily related to the Business, wherever located, whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii)except as may be or remain outstanding pursuant to Section 6.12, intercompany accounts receivable (including trade accounts receivable) or other loan, Contract or advance by Parent to any Company;
(xiii) (A) all claims, counterclaims, causes corporate minute books (and other similar corporate records) and stock records of action, choses in action, rights of recovery, and rights of set-off of any kind Parent (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect as relates to any Intellectual PropertyCompany), (B) any books and records to the extent related relating to the items described Excluded Assets and (C) any books, records or other materials, in this Section 2.01(beach case, that Parent (1) is required by Law to retain, (2) reasonably believes are necessary to enable Parent to prepare and/or file Tax Returns (copies of which will be made available to Buyer upon Buyer’s reasonable request) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi)(3) is prohibited by Law from delivering to Buyer;
(xiv) all cells lines any shares of capital stock or other equity securities of any Person other than those described in Section 2.01(a)(xx), including the remaining portion any Company or any of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)their respective Subsidiaries; and
(xv) all assets set forth on Schedule 2.2(a)(xv). Notwithstanding anything to the contrary set forth in this Agreement or in any real document, certificate or instrument delivered pursuant to or in connection with this Agreement, Buyer acknowledges and agrees that all of the following shall remain the property of Parent and its Affiliates, and neither Buyer nor any of its Affiliates (including, after the Closing, the Companies) shall have any interest therein: (w) all records and reports prepared or received by Parent or any of its Affiliates in connection with the sale of the Business and the transactions contemplated by this Agreement, including all analyses relating to the Business or Buyer so prepared or received; (x) all confidentiality Contracts with prospective purchasers of the Business or any portion thereof (except that Parent shall, or shall cause an Affiliate to, assign to Buyer or its designee at the Closing all of Parent’s or such Affiliate’s rights under such confidentiality Contracts to confidential treatment of information with respect to the Business and the Companies and with respect to solicitation and hiring of Transferred Employees); (y) all bids and expressions of interest received from prospective purchasers of the Business or any portion thereof with respect thereto; and (z) all privileged materials, documents and records in the possession of any of Parent or any of its Affiliates to the extent such materials, documents and records are (A) not related to the Business (provided, that Parent shall be permitted to redact or segregate and retain any information in such materials, documents or records that relates to any Retained Business prior to sharing any such information with Buyer or its Affiliates and neither Buyer nor any of its Affiliates will have any interest in real property any such materials, documents and records to the extent they relate to any Retained Business) or (B) related to any Excluded Asset or Excluded Liability. Buyer further acknowledges and agrees that, with respect to any Action between Parent or one of its Affiliates on the one hand, and Buyer or the Companies (following the Closing) on the other than hand, only Parent or its applicable Affiliates may waive any evidentiary privilege that may attach to a pre-Closing communication that is determined by a court of competent jurisdiction to be subject to attorney-client privilege, and neither Buyer nor the Transferred Real PropertyCompanies (following the Closing), nor any of their Affiliates, shall have the right to compel disclosure of such privileged information.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to Other than the contraryPurchased Assets, no Designated Purchaser shall purchase the Parties expressly understand and agree that the Buyer is not purchasing or otherwise acquire acquiring, and the Sellers are not selling or assigning, any right, title and interest in or to any assets, rights other assets or properties of ▇▇▇▇▇▇the Sellers, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for and all such other assets and properties shall be excluded from the Purchased Assets (the “Excluded Assets”). Excluded Assets include the following assets and properties of the Sellers:
(a) all intercompany receivables other than those identified on Section 2.1(d) of the Confidential Disclosure Letter.
(b) all other accounts receivables of the Sellers other than those identified on Section 2.1(d) of the Confidential Disclosure Letter;
(c) all cash and cash equivalents, bank accounts and securities of the Sellers;
(d) all assets relating to the Deferred Compensation Plans of the Sellers;
(e) all Tax assets (including Tax refunds and prepayments) of the following:Sellers or any of their Affiliates for any period or relating to the Business, the Purchased Assets or the Excluded Liabilities for any taxable period (or portion thereof) ending on or prior to the Closing Date;
(f) all Contracts other than the Forgivable Notes;
(g) all Intellectual Property;
(h) all fixed assets owned by the Sellers;
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationreal property leases owned by the Sellers;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(vj) all Intellectual Property other than (A) insurance policies of the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts Sellers and all rights of any nature with respect thereto, including all insurance to applicable claims and proceeds received or receivable thereunder;
(viiik) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Records; and
(xvl) any real property except as set forth in Section 2.1, all of the Sellers’ books and records, the corporate seals, organizational documents, minute books, stock books and Tax Returns, except for copies of Tax Returns relating solely to the Purchased Assets or interest in real property other than the Transferred Real PropertyAssumed Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement (LPL Financial Holdings Inc.)
Excluded Assets. Notwithstanding It is expressly understood and agreed that, notwithstanding anything in Section 2.01(a) to the contrarycontrary set forth herein, no Designated Purchaser the Assets shall purchase not include the following (each, an "Excluded Asset"):
(i) all assets of the Asset Sellers (including without limitation all rights, properties, claims, contracts, business, real property, leasehold interests in real property, equipment, machinery, vehicles, tools and other tangible personal property) that are not utilized in the Technical Services Business;
(ii) the capital stock of (A) all Subsidiaries, (B) any other subsidiaries of the Seller, and (C) any subsidiaries of the Subsidiaries or otherwise acquire any such other subsidiaries;
(iii) cash and cash equivalents or similar type investments, bank accounts, certificates of deposit, Treasury bills and other marketable securities (including without limitation money market investments and other similar short-term investments) of the Asset Sellers;
(iv) each Asset Seller's right, title and interest in and to the Contracts listed on Schedule 1.1(a)(v);
(v) subject to the provisions of Section 10.5(e), all rights of any of the Asset Sellers to insurance policies, insurance claims, related refunds and proceeds other than those relating exclusively to the Technical Services Business;
(vi) the rights which accrue or will accrue to the Asset Sellers under this Agreement;
(vii) all refunds of Pre-Closing Income Taxes (as defined in Section 2.9) payable to any assetsAsset Seller;
(viii) all assets of the Asset Sellers of every kind, rights nature, character and description located at, or properties of contained in, the Seller's offices located at 45 W▇▇▇▇▇▇ ▇▇▇▇▇▇, Seller or their respective AffiliatesWellesley, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred EmployeesMassachusetts;
(ix) all other Information Technology Assets other than those described assets of EG&G Florida of every kind, nature, character and description utilized in Section 2.01(a)(xviii) or Section 2.01(a)(xix)connection with EG&G Florida's operation of the Kenn▇▇▇ ▇▇▇iness;
(x) all assets actions, claims, causes of action, rights of recovery, choses in action and rights of setoff of any Seller Plan kind arising before, on or after the Closing Date relating to the items set forth above in this Section 1.1(b) or to any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of SellerExcluded Liabilities (as defined in Section 1.1(e));
(xi) subject to the provisions of Article VIIISection 4.10, any right to any refund or credit all right, title and interest of each Asset Seller in the software and related license and service agreements associated with respect to Taxes relating to any Pre-Closing Tax Periodthe Asset Seller's electronic mail, payroll and human resource/management information systems described in Schedule 1.1(b)(xi);
(xii) all right, title and interest of each Asset Seller in any corporate memberships not specifically related to the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);Technical Services Business; and
(xiii) all claimsright, counterclaims, causes title and interest of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included Seller in the Purchased Assets pursuant amounts advanced by the Seller to Section 2.01(a)(xxEC III, Inc. (the "EC III Loan"); and
(xv) any real property or interest in real property other than the Transferred Real Property.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in the terms of Section 2.01(a) 2.1, no Asset Selling Affiliate will sell, convey, assign, transfer or deliver to the contraryPurchaser (or its Designated Affiliates), no and the Purchaser (and its Designated Purchaser shall Affiliates) will not purchase or otherwise acquire acquire, and the Purchased Assets do not include the following assets (together, the “Excluded Assets”):
(a) all accounts receivable of the Asset Selling Affiliates (other than the Notes Receivable) (regardless of whether such accounts receivable relate to the Business);
(b) all Cash, bank deposits, investment accounts, lockboxes, certificates of deposit, marketable securities, bank accounts, corporate credit cards and other similar cash items of any rightAsset Selling Affiliate (including for this purpose all collected funds received into bank accounts owned by any Asset Selling Affiliate through the Closing);
(c) all minute books, title records, stock ledgers and Tax records of the Asset Selling Affiliates, along with personnel records and all other materials that the Asset Selling Affiliates are required by Law to retain;
(d) the shares of the capital stock or other equity securities of any Asset Selling Affiliate and any Asset Selling Affiliate’s ownership interest in any Person (other than the Acquired Companies);
(e) subject to Article 10, all insurance policies, binders, entitlements and rights of the Selling Affiliates thereunder and proceeds thereof;
(f) all rights under all Contracts of any Asset Selling Affiliate other than the Included Contracts;
(g) all rights to refunds, credits or similar benefits relating to any assetsExcluded Taxes;
(h) the “CareFusion” name, rights or properties of ▇▇▇▇▇▇, Seller domain name and logo, along with all intellectual property rights of the Sellers or their respective Affiliatesany Asset Selling Affiliate, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for other than the Purchased Assets (the “Excluded Assets”), including the following:Intellectual Property;
(i) all cash real property and Cash Equivalentsrights of the Asset Selling Affiliates in respect of real property, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Leased Real Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(viij) all current rights in connection with and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of except as otherwise expressly provided in Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii10);
(xiiik) all claims, counterclaims, causes of action, choses in action, rights of recovery, and arising under any Excluded Liability;
(l) all rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout otherwise in connection with the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi)Relevant Phone Numbers;
(xivm) all cells lines assets and other than those described in Section 2.01(a)(xx), rights of the Asset Selling Affiliates sold or otherwise transferred or disposed of during the period from the date of this Agreement through and including the remaining portion of Closing Date, in any cell line of which an aliquot thereof is included event in the Purchased Assets pursuant to Section 2.01(a)(xx)accordance with Sections 5.2 or 5.11 hereof; and
(xvn) all rights of any real property Asset Selling Affiliates under this Agreement or interest in real property other than any of the Transferred Real PropertyAncillary Agreements.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Natus Medical Inc)
Excluded Assets. Notwithstanding anything any provision to the contrary in this Agreement, nothing in this Agreement shall constitute or be construed as requiring Seller to sell, assign, convey, transfer or deliver, and Buyer shall not be entitled to purchase, assume or acquire, any right, title or interest in, to or under any property, asset, business, operation or division of Seller, or any Affiliate thereof, not expressly set forth in Section 2.01(a2.1, including the following assets and properties which are hereby specifically excluded from the definition of Purchased Assets (collectively, the “Excluded Assets”):
(a) to the contrary, no Designated Purchaser shall purchase or otherwise acquire any The right, title and interest of Seller and its successors, assigns and Representatives in, to and under all electrical transmission or distribution facilities (as opposed to generation facilities) or information technology and telecommunications assets of Seller or any of its Affiliates located at or forming a part of either of the Jointly Owned Stations (whether or not regarded as a “transmission” or “generation” asset for regulatory or accounting purposes), including all switchyard facilities, substation facilities and support equipment, as well as all permits, contracts and warranties, to the extent they relate to such transmission and distribution assets or information technology and telecommunications assets (other than the electrical transmission facilities set forth on Schedule 2.1(d), all of which are included as Purchased Assets) (collectively, the “Transmission Assets”);
(b) All certificates of deposit, shares of stock, securities, bonds, debentures, evidences of indebtedness, and interests (other than Seller’s membership interests in Conemaugh Fuels, LLC and Keystone Fuels, LLC) in partnerships and other entities;
(c) All cash (other than the Station Working Funds), cash equivalents, bank deposits, accounts and notes receivable (trade or otherwise), and prepaid expenses, including such as relate to any assetsExcluded Assets or the operation of the Purchased Assets, rights and any income, sales, payroll or properties of ▇▇▇▇▇▇other Tax receivables (in each case, whether held by Seller or their respective Affiliatesany third party, including under any Jointly Owned Stations Operating Agreement);
(d) The right, title and interest of Seller and its successors, assigns and Representatives in, to and under all intellectual property, including the names “Atlantic City Electric Company”, “Atlantic Energy”, “ACE”, “Conectiv”, “Pepco”, “Pepco Holdings” or any derivation thereof, as well as any related or similar name, or any other trade names, trademarks, service marks, corporate names and logos, or any part, derivation, colorable imitation or combination thereof (other than “Conemaugh Generating Station” and “Keystone Generating Station”);
(e) All tariffs, agreements and arrangements to which Seller or its Representatives is a party for the purchase or sale of electric capacity or energy, or for the purchase of transmission, distribution or ancillary services;
(f) The right, title and interest of Seller and its successors, assigns and Representatives in, to and under all claims against third parties, if any, relating to the ownership, lease, maintenance or operation of any Purchased Assets by Seller prior to the Closing Date, whether accruing prior to, on or after the Closing Date, including all claims for refunds, prepayments, offsets, recoupment, insurance proceeds, insurance distributions, dividends or other proceeds, condemnation awards, judgments and the like, whether received as payment or credit against future Liabilities;
(g) All Tax refunds or credits (including refunds or credits of real property Taxes paid or due with respect to the Jointly Owned Stations or any related real property), which refunds or credits are with respect to periods prior to the Closing Date, whether directly or indirectly, under the Jointly Owned Stations Operating Agreements or otherwise, regardless of kindwhen actually paid;
(h) All employment agreements and personnel records of Seller and its successors, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:assigns and Representatives;
(i) all cash and Cash EquivalentsThe minute books, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the divisionstock transfer books, corporate office, overhead or back-office functions seal and other corporate records of Seller and its Affiliatessuccessors, assigns and Representatives;
(ivj) except The right, title and interest of Seller and its successors, assigns and Representatives in, to and under all contracts, agreements, arrangements, licenses and leases of any nature, other than the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)Seller’s Agreements;
(vk) all Intellectual Property other than (A) All insurance policies relating to the Transferred Intellectual Propertyownership, and (B) lease, maintenance or operation of the Additional Assigned Intellectual PropertyPurchased Assets;
(vil) All other assets and properties owned or leased by Seller or its successors, assigns and Representatives which are not used in the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)operation of the Jointly Owned Stations;
(viim) all current The right, title and prior insurance Contracts interest of Seller and all rights of any nature with respect theretoits successors, including all insurance proceeds received or receivable thereunder;assigns and Representatives under this Agreement and the Additional Agreements; and
(viiin) The right, title and interest of Seller and its successors, assigns and Representatives in, to and under all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees Emission Allowances of Seller or any of its Affiliates (other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products Emission Allowances set forth on Schedule 2.01(b)(xii2.1(f);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Duquesne Light Holdings Inc)
Excluded Assets. Notwithstanding anything the provisions of Section 1.1 above, the following assets and properties are to be retained by Seller and shall not constitute Acquired Assets (collectively, the “Excluded Assets”): (a) all real property, buildings, structures and improvements thereon, whether owned or leased by Seller, all fixtures and fittings attached thereto, but not including any of the Tangible Assets, and all security deposits with respect to any leased properties other than those explicitly included in Section 2.01(athe Acquired Assets; (b) to the contrary, no Designated Purchaser shall purchase or otherwise acquire any all right, title and interest in, to and under all Contracts to which Seller is a party or by which Seller or any of its assets or properties is otherwise subject to or bound other than the Assigned Contracts; (c) all capital stock or other equity interest in Seller or any Subsidiary, Affiliate or other Person, and all options, warrants or other rights to acquire such capital stock or other equity; (d) all right, title and interest to any assetsvehicles owned, leased or used by the Seller; (e) all right, title and interest to all insurance policies of Seller; (f) all minute books and stock records of Seller; (g) all personnel records of all employees other than Transferred Employees; (h) all rights of Seller and Seller Parent under this Agreement and the Related Agreements or properties arising from the consummation of ▇▇▇▇▇▇, Seller the transactions contemplated hereby or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
thereby; (i) all cash Employee Benefit Plans; (j) the Southborough Lease; (k) all bank and Cash Equivalentsbrokerage accounts of Seller; (l) all Tax records of Seller; (m) all rights, including any cash claims or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions credits of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
Excluded Asset or Excluded Liability; (xiin) the Registrations used in the manufacturing all cash; and (o) all inventory of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real PropertyUAV Business.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Assets. Notwithstanding It is expressly understood and agreed that, notwithstanding anything in Section 2.01(a) to the contrarycontrary set forth herein, no Designated Purchaser the Acquired Assets shall purchase or otherwise acquire any not include Seller’s right, title and or interest in or to any assetsof the assets that are not identified in Section 1.1(a), rights or properties of ▇▇▇▇▇▇including the following assets (collectively, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:):
(i) all cash and Cash Equivalentsthe assets, including any cash properties or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationrights listed on Schedule 1.1(b)(i);
(ii) the capital stock of all subsidiaries of Seller and any and all Accounts Receivableother equity ownership interests owned (beneficially or of record) by Seller;
(iii) any Contracts used in the Triage Business that relate to the divisionall cash and cash equivalents or similar type investments, corporate officebank accounts, overhead or back-office functions certificates of Seller deposit, Treasury bills and its Affiliatesother marketable securities;
(iv) except to all rights and interest of Seller under Seller’s contracts with distributors or selling personnel and the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described other contracts and agreements listed on Schedule 2.01(b)(iv1.1(b)(iv);
(v) all intellectual property rights and intellectual property other than the Designated Patents, Designated Trademarks, Designated Domain Names, Designated Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual PropertyExpired Patents;
(vi) all accounts receivable and other receivables (whether or not billed) as of the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)Closing for the Business;
(vii) all current and prior insurance Contracts policies and all rights of any nature with respect theretoSeller to insurance claims, including all insurance related refunds and proceeds received or receivable thereunder;
(viii) all owned the rights which accrue or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of will accrue to Seller or its Affiliates other than the Transferred Employeesunder this Agreement;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) Employee Benefit Plans or Section 2.01(a)(xix)arrangements of Seller, and all assets, contracts and insurance and funding arrangements relating thereto;
(x) all assets any intercompany account of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Sellerkind;
(xi) subject all Tax refunds, Tax deposits, and other Tax assets of Seller (other than Tax refunds to the provisions of which Buyer is entitled under Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing ) and all Tax Period;books and records of Seller; and
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all actions, claims, counterclaims, causes of action, choses in action, rights of recovery, choses in action and rights of set-off setoff of any kind (including all damages and payments for pastarising before, present at or future infringement or misappropriation of Intellectual Property, after the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related Closing relating to the items described set forth above in this Section 2.01(b1.1(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of to any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real PropertyExcluded Liabilities.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in the terms of Section 2.01(a) 2.1, no member of the Seller Group will sell, convey, assign, transfer or deliver to the contraryPurchaser, no Designated and the Purchaser shall will not purchase or otherwise acquire any rightacquire, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets do not include, any assets other than the Purchased Assets, including any of the following assets (the “Excluded Assets”):
(a) all cash, cash equivalents, bank deposits, investment accounts, lockboxes, certificates of deposit, marketable securities, bank accounts, corporate credit cards and other similar cash items of the Seller Group;
(b) all notes and receivables due from any member or division of the Seller Group, and all notes and accounts receivable of the Seller Group other than as described in Section 2.1(k);
(c) all minute books, including records, stock ledgers, Tax records and all other materials that the following:Seller Group is required by Law to retain;
(d) the shares of the capital stock of any member of the Seller Group and all of the Seller’s or any other Seller Group member’s ownership interest in any Subsidiary or other Person;
(e) all insurance policies, binders and claims and rights thereunder and proceeds thereof, other than as described in Section 2.1(l);
(f) all rights under all Contracts of the Seller Group other than the Included Contracts, except for the relevant portion of any Mixed Use Agreements as set forth in Section 2.1(b);
(g) all rights to refunds, credits or similar benefits relating to Taxes and other governmental charges of whatever nature for periods ending on or before the Closing Date;
(h) all Intellectual Property of the Seller Group other than the Purchased Intellectual Property;
(i) all cash real property and Cash Equivalentsrights in respect of real property, including any cash or Cash Equivalents residing other than as described in any collateral account securing any obligation or contingent obligationSection 2.1(e);
(iij) any and all Accounts Receivableassets of the Seller Plans which are not transferred pursuant to Article 10;
(iiik) all rights arising under any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its AffiliatesExcluded Liability;
(ivl) all inventory of the Business sold or otherwise transferred or disposed of during the period from the date of this Agreement through and including the Closing Date, in the ordinary course of business and in accordance with the provisions of this Agreement;
(m) all rights of the Seller Group under this Agreement or any of the Ancillary Agreements to which any member of the Seller Group is a party;
(n) all tangible property used or held in connection with or relating to (i) the operation of the Boscobel Facility or the Des Moines Facility, except as provided in Sections 2.1(a) and 2.1(d), and (ii) the services to be provided by the Seller Group pursuant to the Purchaser Transition Services Agreement;
(o) all intangible property used or held in connection with or relating to the operation of the Boscobel Facility or the Des Moines Facility, except to the extent included such intangible property is used exclusively or primarily in connection with the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), Exploitation of any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)Alcan Relevant Product;
(vp) all Intellectual Property other than (A) tangible and intangible property used or held by the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or any of its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit planprior to March 1, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)2010; and
(xvq) any real property for the avoidance of doubt, all business of the Seller Group that is not included in the Business, including the tangible and intangible assets used or interest held in real property other than connection with, necessary for or relating to the Transferred Real PropertyWax-Coating Business.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) any other provision of this Agreement, Seller shall retain and shall not sell, transfer, convey, assign or deliver to the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and or interest in any properties, assets or to any assetsrights that are not Purchased Assets, rights that are set forth on Schedule 1.2 or properties of ▇▇▇▇▇▇that are described in this Section 1.2 (collectively, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:):
(ia) all any cash, checks, money orders, marketable securities, short-term instruments and other cash equivalents, funds in time and Cash Equivalentsdemand deposits or similar accounts, including and any cash evidence of indebtedness issued or Cash Equivalents residing in guaranteed by any collateral account securing any obligation or contingent obligationGovernmental Authority;
(iib) any and all Accounts Receivablecontracts of Seller or rights therein or thereunder, other than the Assigned Contracts;
(iiic) any Contracts used real estate owned or leased by Seller or any of its Affiliates, other than the Facility Leases;
(d) any Governmental Approvals, other than as set forth in Schedule 1.1(c);
(e) the Triage Business that relate to the division, corporate office, overhead or back-office functions books and records of Seller and its AffiliatesAffiliates and any attorney work product, attorney-client communications and other items protected by attorney-client or similar privilege;
(ivf) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts policies of Seller and its Affiliates and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunderrecoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(viiig) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees any Intellectual Property Rights of Seller or and its Affiliates Affiliates, other than the Transferred Employees;
Intellectual Property (ix) for clarity, the Excluded Assets include all other Information Technology Assets other than those described in Section 2.01(a)(xviii) Patents owned or Section 2.01(a)(xixcontrolled by Seller or any of its Affiliates);
(xh) all assets any clinical or non-clinical data of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Sellerand its Affiliates;
(xii) subject any assets directly and principally related to the provisions one or more of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax PeriodSeller’s proprietary programs;
(xiij) the Registrations used in the manufacturing of the Products set forth biomanufacturing and analytical equipment listed on Schedule 2.01(b)(xii1.2(j) (the “Retained Equipment”);
(xiiik) all claims, counterclaims, causes of action, choses in action, rights of recovery, Facility Records directly and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent principally related to the items described in this Section 2.01(bone or more of Seller’s proprietary programs;
(l) information technology and phone systems owned or not otherwise included in Purchased Assets under Section 2.01(a)(xvileased by Seller listed on Schedule 1.2(l);
(xivm) all cells lines other than those described in Section 2.01(a)(xx), including rights to the remaining portion of any cell line of which an aliquot thereof is included in BCD Facility Cash Deposit;
(n) the Purchased Assets pursuant to Section 2.01(a)(xx)20FF Facility LOC;
(o) all accounts receivable; and
(xvp) any real property right, title and interest of Seller or interest any of its Affiliates relating to any Excluded Asset or any Excluded Liability, including any guarantees, warranties, indemnities and similar rights in real property other than the Transferred Real Propertyfavor of Seller or any of its Affiliates relating to any Excluded Asset or any Excluded Liability.
Appears in 1 contract
Excluded Assets. Notwithstanding anything The Seller Companies will not sell, assign, transfer or deliver to the Purchaser Companies the following assets (collectively, the “Excluded Assets”):
(a) Any assets, properties, rights, contracts and claims, wherever located, whether tangible or intangible, real or personal, of any Seller Company that are not used, held for use or intended to be used primarily in the operation or conduct of the Business;
(b) Except as set forth in Section 2.01(a) to the contrary1.1(h), no Designated Purchaser shall purchase or otherwise acquire all cash, cash equivalents, bank accounts, lockboxes and deposits, and any right, title and interest in or to any assets, rights or properties interests in, to or with the cash management system of any Seller Company and its Affiliates (as defined in Section 11.7(a));
(c) All rights of the Seller Companies under the Contracts set forth on Schedule 1.2(c) and any other Contract not included in the Purchased Assets and all Equipment identified on Exhibit A to Schedule 1.1(a) as “Remains with Seller” located at facilities leased pursuant to such Contracts;
(d) All Intellectual Property that is not included in the Purchased Assets, including all rights of the Seller and its Subsidiaries to use the “▇▇▇▇▇▇” and “▇▇▇▇▇▇ Highland Group” trade names or trademarks, or any part or derivation thereof, together with all goodwill associated therewith, represented thereby or pertaining thereto;
(e) Except as expressly set forth in Section 6.8, all Benefit Plans (as defined in Section 4.16(a)) of the Seller Companies and any trusts, insurance arrangements or other assets held pursuant to, or set aside to fund the obligations of Seller or their respective its Subsidiaries under, any such Benefit Plans;
(f) All insurance policies and all rights of the Seller Companies of every nature and description under or arising out of such insurance policies;
(g) All financial and accounting Business Records that form part of Seller’s and its Affiliates’ general ledgers, regardless all Tax Returns of kind, description any Seller Company and all Business Records of any Seller Company that do not relate primarily to any Purchased Asset or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets any Assumed Liability;
(the “Excluded Assets”), including the following:h) All intercompany receivables owed by any Affiliate of a Seller Company to such Seller Company;
(i) all cash and Cash Equivalents, including any cash Any refunds or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world credits with respect to any Intellectual PropertyTaxes, plus any related interest received or due from the relevant taxing authority;
(j) Any equity interest in any Seller Company;
(k) All equity securities and warrants to acquire equity securities of a current or former client of the Business;
(l) The Seller Companies’ minute books, stock records and corporate seals;
(m) All rights of the Seller Companies under this Agreement, the Purchaser Documents and the Seller Documents; and
(n) All rights, claims and credits of any Seller Company to the extent related to any other Excluded Asset or any of the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
Excluded Liabilities (xiv) all cells lines other than those described as defined in Section 2.01(a)(xx1.4), including the remaining portion any such items arising under insurance policies and all guarantees, warranties, indemnities and similar rights in favor of any cell line Seller Company in respect of which an aliquot thereof is included in any other Excluded Asset or any of the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real PropertyExcluded Liabilities.
Appears in 1 contract
Excluded Assets. Notwithstanding It is expressly understood and agreed that, notwithstanding anything in Section 2.01(a) to the contrarycontrary set forth herein, no Designated Purchaser the Acquired Assets shall purchase or otherwise acquire any not include the Asset Sellers’ right, title and or interest in or to any assetsof the following (each, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the an “Excluded AssetsAsset”), including the following:):
(i) Any assets (including all cash rights, properties, claims, contracts, business, real property, leasehold (or other equivalent) interests in real property, equipment, machinery, vehicles, tools and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationother tangible personal property) other than the Acquired Assets;
(ii) any and all Accounts ReceivableThe assets, properties or rights set forth on Schedule 1.1(c)(ii) attached hereto;
(iii) The stock, shares, quotas, investment capital, membership units and interests, capital stock or other equity interests of any Contracts used in entity other than the Triage Business that relate to Acquired Companies or the division, corporate office, overhead or back-office functions of Seller and its AffiliatesJV Interests;
(iv) Any intercompany account of any kind or nature (other than as contemplated by the Commercial Agreements (as defined below) or Section 4.5(a)(ii));
(v) All cash and cash equivalents or similar type investments, bank accounts, certificates of deposit, security deposits, Treasury bills and other marketable securities (except to the extent included in the Purchased Assets under Closing Cash or Restricted Cash or as otherwise provided in Section 2.01(a)(v1.1(b)(ii) or Section 2.01(a)(xviii1.1(b)(xxiii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical The contracts and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described agreements listed on Schedule 2.01(b)(vi)1.1(c)(vi) attached hereto;
(vii) all current and prior All insurance Contracts policies and all rights of any nature with respect theretothe Asset Sellers to insurance claims, including all insurance related refunds and proceeds received thereunder (other than as set forth in Section 1.1(b)(xvii) or receivable thereunderSection 8.2(b));
(viii) all owned All personnel files and other-employment related records for persons who do not become New Buyer Employees or leased desktop computerswhere required consent is not obtained under Section 8.5(m);
(ix) All Employee Benefit Plans or Foreign Benefit Plans sponsored, laptopsmaintained, tablets, mobile phones and similar assets primarily used or contributed to by employees PKI or any of Seller or its Affiliates other than the Transferred Employees;
Acquired Benefit Plans and all assets attributable thereto (ix) all other Information Technology for the avoidance of doubt, the Acquired Benefit Plan Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xixshall not constitute Excluded Assets);
(x) all assets of any Seller Plan The rights which accrue or any similar benefit plan, program or arrangement that is maintained or contributed will accrue to by any Seller or Affiliate of SellerPKI under this Agreement;
(xi) subject to All refunds of Taxes (as defined in Section 2.9(a)) of the provisions of Article VIII, any right to any refund Asset Sellers or credit with respect to Taxes relating the Acquired Assets for all periods (or portions thereof) ending on or prior to any the Actual Cutover Date or for Pre-Closing Tax PeriodPeriods to which the Sellers are entitled pursuant to Section 7.3;
(xii) The corporate seals, governing documents, minute books, stock books, stock ledgers, Tax Returns, books of account or other records having to do with the Registrations used in the manufacturing corporate organization of the Products set forth on Schedule 2.01(b)(xii)any Asset Seller;
(xiii) Any currently or formerly owned, operated or leased real property, together with all buildings, structures, improvements and fixtures thereon and all real property interests appurtenant thereto, other than the Transferred Real Property and the Leased Facilities;
(A) All attorney-client privilege and attorney work-product protection of PKI or its Affiliates (as defined below), but excluding the Acquired Companies, to the extent not related to the Business, the Acquired Companies or the Actions as a result of legal counsel representing PKI, its subsidiaries or the Business, including in connection with the sale of the Business and the transactions contemplated by this Agreement, (B) all documents subject to attorney-client privilege and work-product protection described in the foregoing subsection (A), and (C) all documents maintained by PKI, its subsidiaries or their respective Representatives in connection with the sale of the Business, including the transactions contemplated by this Agreement;
(xv) All cash and cash equivalents, certificates of deposit, security deposits, Treasury bills and securities to the extent generated, earned or received in respect of the Excluded Assets, or by the Excluded Business, during the Locked Box Period; and
(xvi) All actions, rights, claims, counterclaims, causes of action, choses in action, rights of recovery, choses in action and rights of set-off setoff of any kind kind, accruing or arising before, on or after the Closing Date to the extent relating to the Excluded Assets or to any Excluded Liabilities (including all damages as defined in Section 1.1(e)) and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use retain all proceeds, damages and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Propertyremedies therefrom.
Appears in 1 contract
Sources: Master Purchase and Sale Agreement (Perkinelmer Inc)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to It is specifically agreed that Unocal is not selling and Buyer is not purchasing the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets following assets (the “"Excluded Assets”), including the following:"):
(i) all cash rights and Cash Equivalents, including interests of any cash or Cash Equivalents residing kind in any collateral account securing any obligation or contingent obligationleases and lands other than the Leasehold Interests and Oil and Gas Properties;
(ii) any and all Accounts Receivableinterests in the Assets Unocal is legally or contractually restricted from selling which are listed on Schedule 2.2(ii);
(iii) all materials and equipment leased (other than contractual lease rights pursuant to any Contracts used lease included in the Triage Business that relate to Contract Rights) or temporarily located on the divisionLeasehold Interests, corporate officeand any materials, overhead equipment, pipelines, facilities or back-office functions interests in the land owned by a purchaser and/or transporter of Seller and its Affiliatesoil and/or gas therefrom, a lessor, or a third Person;
(iv) except to all interests in pipelines, facilities, contract rights and surface access agreements owned by Unocal that are not used in connection with the extent included Assets or which cover lands described in the Purchased Assets Leasehold Interests and Oil and Gas Properties, but which are used solely in connection with properties that are not being sold under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)the terms of this Agreement;
(v) any right to use the "Unocal" name, marks, trade dress or insignia, or to use the name of any other subsidiary of Unocal Corporation; and all Intellectual Property of Unocal's and its Affiliates' intellectual property, including, but not limited to patents, trade secrets and copyrights other than (A) intellectual property included in the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual PropertyAssets;
(vi) all amounts due or payable to Unocal or its Affiliates as adjustments or refunds under any contracts affecting the machineryAssets and Accruing for all periods of time prior to the Effective Date, equipmentspecifically including, mechanical and spare partswithout limitation, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)amounts recoverable from audits under operating agreements;
(vii) all current rights, titles, claims and interests of Unocal and its Affiliates Accruing prior to the Effective Date to or under any policy or agreement of insurance Contracts and all rights of or indemnity, any nature with respect theretobond, including all or to any insurance proceeds received or receivable thereunderawards; and any employment, consulting, office lease or accounting service contracts;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones claims and similar assets primarily used by employees choses in action of Seller or Unocal and its Affiliates other than arising from acts, omissions or events, or damages to or destruction of property related to the Transferred Employeesownership or operation of the Assets and Accruing prior to the Effective Date;
(ix) all other Information Technology proceeds, benefits, income or revenue Accruing to the Assets other than those described in Section 2.01(a)(xviii) prior to the Effective Date, and any claims of Unocal and its Affiliates for refunds of or Section 2.01(a)(xix);losses carried forwarded with respect to taxes attributable to the Assets for any period prior to the Effective Date; and
(x) all assets of any Seller Plan geophysical, geological and seismic data, surveys, analysis and similar data or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recoveryinformation, and all rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines therein other than those described in Section 2.01(a)(xx), including as specifically licensed under the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real PropertyGeophysical Data Licensing Agreement.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest contrary contained in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliatesthis Agreement, regardless of kind, description whether such asset is disclosed herein or location or whether tangible or intangible, real, personal or mixedon any schedule hereto, except for the Purchased Assets, Buyer will not acquire the following assets of any Seller or any Affiliate of any Seller or any other assets whatsoever related to the ownership or operation of the Business or the Purchased Assets at any time (such assets, other than the Purchased Assets, the “Excluded Assets”). Without limiting the generality of the foregoing, including the following“Excluded Assets” include the following assets of any Seller or any Affiliate of any Seller, except to the extent such assets expressly constitute Purchased Assets:
(i) the Subject Facilities and all cash current or former real estate (including fittings and Cash Equivalentsimprovements thereon, and easements, servitudes, licenses, rights of way, permits, and the other appurtenances thereto, including any cash appurtenant rights in and to public streets, whether or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationnot vacated) and all Licenses and Permits related thereto;
(ii) any all raw materials, manufactured and all Accounts Receivablepurchased parts, work-in-process, finished goods, inventories and supplies, whether on hand or on order (“Inventory”);
(iii) any Contracts used in the Triage Business that relate to the divisionall automobiles, corporate officetrucks, tractors, trailors and other vehicles (including overhead or back-office functions of Seller cranes, rail cars and its Affiliatesforklifts);
(iv) except to all accounts receivable of the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)Business;
(v) all Intellectual Property personal property and other than (A) assets located at the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual PropertyMiddletown Facility;
(vi) Sellers’ rights under or pursuant to the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)Transaction Documents;
(vii) all current cash and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereundercash equivalents;
(viii) except as provided in Section 2.1(a)(iii), all owned or leased desktop computersbooks, laptopsledgers, tabletsfiles, mobile phones documents, correspondence and similar assets primarily used by employees of Seller or its Affiliates other than business records related to the Transferred EmployeesBusiness;
(ix) except as included as Purchased Assets, all other Information Technology Assets other than those described assets and properties used in Section 2.01(a)(xviii) or Section 2.01(a)(xixSellers’ information technology and telecommunication systems (including hardware, software, servers, personal computers, phones and phone systems and others communications equipment), records and office furniture and fixtures located at the Elk Grove Village Facility;
(x) Nickel Carbonate Purchase Contracts, Natural Gas Purchase Contracts, the Elk Grove Village CBA, all assets Plans of Sellers, and all other Contracts of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaimsdeposits, prepayments, warranties, guarantees, refunds, causes of action, choses in action, rights of recovery, and rights of set-off and rights of any compensation of every kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) nature to the extent relating to the other Excluded Assets or Excluded Liabilities, including the Existing OSHA Matters;
(xii) any assets relating to any Plans;
(xiii) any Proprietary Rights, including “Material Sciences Corporation,” “MSC”, “Deco Steel®”, “Electrobrite®”, “Quiet Steel®”, “Viva Color®” and “Specular+®” names and trademarks and any Proprietary Rights related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi)post-paint conversions of “Deco Steel®”, “Electrobrite®”, “Quiet Steel®”, “Viva Color®” and “Specular+®” products;
(xiv) all cells lines any right any Seller has with respect to a refund for Taxes or other than those described in Section 2.01(a)(xx)Tax asset, including the remaining portion or with respect to any Tax for which a Seller or any of any cell line of which an aliquot thereof its Affiliates is included in the Purchased Assets pursuant to Section 2.01(a)(xx)responsible; and
(xv) any real property or interest in real property other than the Transferred Real Propertyall Transition Period Orders.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary in this Agreement, no Designated Purchaser H▇▇▇▇▇ and its Retained Subsidiaries shall purchase be entitled to retain or otherwise acquire any to receive from the Contributed Subsidiaries, whether prior to or after the Closing, all of the right, title and interest in or to any assets, rights or properties of H▇▇▇▇▇▇▇ and its Subsidiaries in and to the following Properties as of the Closing Date and none of such Properties shall be deemed to be a Contributed Asset (collectively, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:):
(i) all cash Properties of H▇▇▇▇▇ and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationits Subsidiaries which are not Related to the MCD Business;
(ii) any and all Accounts ReceivableH▇▇▇▇▇ Intercompany Liabilities;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller all Excluded Books and its AffiliatesRecords;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)all Excluded MCD Business Contracts;
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, of H▇▇▇▇▇ and (B) the Additional Assigned Intellectual Propertyits Subsidiaries listed on Schedule K;
(vi) (A) all leases and subleases of real property, fixtures or equipment from third parties by H▇▇▇▇▇ and its Subsidiaries other than the machinery, equipment, mechanical Contributed Leases and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media (B) those leases and fixtures described subleases listed on Schedule 2.01(b)(vi)L;
(vii) all current Tax assets (including duty and prior insurance Contracts tax refunds and all rights prepayments) of H▇▇▇▇▇ or any nature with respect thereto, including all insurance proceeds received or receivable thereunderof its Retained Subsidiaries;
(viii) all owned Tax Returns of H▇▇▇▇▇ or leased desktop computersany of its Retained Subsidiaries and all Tax Return workpapers related thereto, laptops, tablets, mobile phones excepting Tax Returns and similar assets related workpapers relating primarily used by employees of Seller to the MCD Business or its Affiliates other than the Transferred EmployeesContributed Assets;
(ix) all other Information Technology Assets other than those described rights in Section 2.01(a)(xviii) or Section 2.01(a)(xix)connection with, and assets of, the MCD Employee Benefit Plans;
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Sellerinsurance policies and rights thereunder other than those listed on Schedule M;
(xi) subject to all invoices, shipping documents, purchase orders and other preprinted business forms that have any Trademark thereon other than those included in the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax PeriodContributed Intellectual Property;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii)all cash and cash equivalents;
(xiii) all claims, counterclaims, causes insurance proceeds which H▇▇▇▇▇ or any of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the its Subsidiaries have a right to use and recover for past infringements receive unless such proceeds are Contributed Insurance Proceeds or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout are reflected in the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi)Audited Financial Statements;
(xiv) all cells lines other than those described Governmental Authorizations of H▇▇▇▇▇ and its Subsidiaries which (A) are not transferable by their terms or may not be transferred without the consent, approval, authorization or waiver of the relevant Government Entity and (B) are not required by Newco and its Subsidiaries in Section 2.01(a)(xxorder to be able to continue to conduct the MCD Business after the Closing in all material respects as currently conducted by H▇▇▇▇▇ and its Subsidiaries (the “Newco Governmental Authorizations”), including ;
(xv) the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Properties set forth on Schedule N; and
(xvxvi) any real the equipment, machinery and other personal property or interest in real property other than the Transferred Real Property.set forth on Schedule R.
Appears in 1 contract
Sources: Formation, Contribution and Merger Agreement (Harris Corp /De/)
Excluded Assets. Notwithstanding anything any other provision in Section 2.01(a) to this Agreement, Pfizer or any Affiliate thereof shall retain the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets following (the “Excluded Assets”), including the following:):
(ia) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(iib) all intercompany receivables;
(c) all account receivables;
(d) all Tax losses, Tax loss carry forwards and rights to receive refunds, credits and credit carry forwards with respect to any and all Accounts ReceivableTaxes, to the extent attributable to a taxable period (or portion thereof) ending on or prior to the Closing Date including, without limitation, interest thereon;
(iiie) any Contracts used in the Triage Business corporate books and records of Pfizer and the general account and books of original entry that relate to the division, corporate office, overhead comprise Pfizer’s permanent accounting or back-office functions of Seller and its Affiliatestax records;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(viif) all current and prior insurance Contracts policies and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunderrecoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(viiig) all Trademarks including, without limitation “Pfizer,” “▇▇▇▇▇▇-▇▇▇▇▇▇▇,” “▇▇▇▇▇-▇▇▇▇▇,” “▇▇▇▇▇▇,” “Pharmacia” and “Wyeth”;
(h) the Excluded IT Contracts;
(i) the Excluded IP;
(j) the assets of any Plan;
(k) all and any finished Product, raw materials, partly finished Product or work in progress and ABI existing or located at the Facility and owned by Pfizer or leased desktop computersany of its Affiliates;
(l) all assets, laptops, tablets, mobile phones and similar assets primarily used by employees properties or rights of Seller Pfizer or its Affiliates Affiliates, other than the Transferred EmployeesPurchased Assets;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xim) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual PropertyEasement Agreement, the right to use Adjacent Properties which includes, for the avoidance of doubt and recover for past infringements or misappropriations of Intellectual Propertywithout limitation, the land on and any and all corresponding rights that have been, now or hereafter may be secured throughout through which the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof Storm Water System is included in the Purchased Assets pursuant to Section 2.01(a)(xx)situated; and
(xvn) any real property all books, records and information of Pfizer or interest in real property its Affiliates (including, without limitation, the Excluded Books and Records), other than regulatory books, records or information required by Law to be kept at the Transferred Real PropertyFacility.
Appears in 1 contract
Sources: Asset Purchase Agreement (Biomarin Pharmaceutical Inc)
Excluded Assets. Notwithstanding anything The Parties acknowledge and agree that the following assets, properties and rights of Seller or any of its Subsidiaries (collectively, the “Excluded Assets”) are not part of the sale and purchase contemplated hereunder, are excluded from the Acquired Assets and shall remain the property of Seller and its Subsidiaries after the Closing:
(a) all Real Property that is not Transferred Real Property;
(b) all Tangible Property that is not Transferred Tangible Property;
(c) the Retained Real Property Leases;
(d) all Contracts that are not Transferred Contracts, and the Contracts set forth on Schedule 2.2(d);
(e) all Permits that are not Transferred Permits;
(f) all books and records of Seller and its Subsidiaries that are not Transferred Books and Records (including all minute books, stock ledgers and Tax records and all employee-related or employee benefit-related files or records other than personnel files of Transferred Employees or the Transferred Employee Benefit Plans);
(g) all Cash and Cash Equivalents (other than any Transferred Restricted Cash or any proceeds under Sections 2.1(p) or 2.1(q)) of Seller and its Subsidiaries, and all uncleared checks, wires ACH settlements and drafts, but only, in Section 2.01(a) each case, to the contraryextent not included as a current asset for purposes of calculating Working Capital;
(h) all Retained Employee Benefit Plans;
(i) all rights of Seller and its Subsidiaries under this Agreement and the other Transaction Agreements;
(j) all rights arising from Excluded Liabilities, no Designated Purchaser shall purchase including all claims, causes of action and rights against any third party to the extent relating to any Excluded Liabilities (including rights of set-off, rights to refunds and rights of recoupment from or against any such third party);
(k) all rights to Tax refunds, credits or similar benefits relating to the Acquired Assets or the Business to the extent attributable to periods, or portions of periods, ending on or before the Closing Date;
(l) except for the Conveyed Equity Interests, all stock or other equity interests in any Person, but only to the extent not primarily related to the Acquired Assets or the Business or otherwise acquire held directly or indirectly by the Transferred Subsidiaries;
(m) all insurance policies of Seller and all rights to applicable claims and proceeds thereunder, subject to Sections 2.1(p) and 2.1(q);
(n) all assets, properties and rights in the Railcar Lease Fleet, together with any railcars which have been manufactured by Seller or any Subsidiary thereof prior to the Closing, in order to be leased by Seller or any Subsidiary thereof, or any Affiliate thereof, including ITE Rail Fund L.P., to a third party, but excluding any railcars that (i) are still in the process of being manufactured or (ii) are treated as inventory under GAAP and the accounting policies of Seller, in each case, at the Closing;
(o) all corporate-level assets of Seller or any of its Subsidiaries to the extent such corporate-level assets are not Transferred Corporate Level Assets
(p) any assets, properties and rights held by any of Longtrain Leasing I, LLC, a Delaware limited liability company, Longtrain Leasing, II LLC, a Delaware limited liability company, Longtrain Leasing, III LLC, a Delaware limited liability company, ARI Longtrain Inc., a Delaware corporation, or STL Asset, LLC, a Delaware limited liability company, including those set forth on Schedule 2.2(p);
(q) any assets, properties and rights set forth on Schedule 2.2(r);
(r) all Reporting Marks utilized in the Railcar Lease Fleet; and
(s) all right, title and interest in or and to any all property and assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or personal, mixed, except tangible and intangible, of every kind and description, not primarily used or held for use in connection with the Purchased Assets (operation or conduct of the “Excluded Assets”)Business, including all right, title and interest in and to all property and assets, real, personal, mixed, tangible and intangible, of every kind and description, whether or not reflected on the following:
(i) all cash books and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions records of Seller and its Affiliates;
(iv) except to Subsidiaries and wherever located, used or held for use in connection with the extent included in the Purchased Assets under Section 2.01(a)(v) operation or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights conduct of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees business of Seller or its Affiliates Subsidiaries as of the Closing Date other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described Business and not primarily used or held for use in Section 2.01(a)(xviii) connection with the operation or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing conduct of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real PropertyBusiness.
Appears in 1 contract
Sources: Asset Purchase Agreement (Greenbrier Companies Inc)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to Other than the contraryPurchased Assets, no Designated Purchaser shall purchase each Buyer expressly understands and agrees that it is not purchasing or otherwise acquire acquiring, and Seller is not selling or assigning, any right, title and interest in or to any assets, rights other assets or properties of ▇▇▇▇▇▇, Seller or their respective Affiliatesthe Business, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for and all such other assets and properties shall be excluded from the Purchased Assets (collectively, the “"Excluded Assets”"). Excluded Assets include, without limitation, the following.
(a) all equipment of the Business related to the production of products other than LM and DMTX products, including the following:
(i) all cash without limitation receiver and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationexternally modulated transmitter products;
(iib) any and all Accounts Receivableaccounts receivable of the Business;
(iiic) any all Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its AffiliatesBusiness;
(ivd) except all inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories of the Business; and
(e) all prepaid expenses, credits, advance payments, security, deposits, charges, sums and fees related to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)Business;
(vf) all Intellectual Property books and records of the Seller, EA and the Business, including without limitation books of account, ledgers and general, financial and accounting records (other than maintenance files related to the Purchased Assets), customer lists, customer purchasing histories, price lists, distribution lists, supplier lists (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets manufacturer of any Seller Plan or any similar benefit planPurchased Assets), program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIIIproduction data, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claimsquality control records and procedures, counterclaimscustomer complaints and inquiry files, causes of actionresearch and development files, choses in action, rights of recovery, records and rights of set-off of any kind data (including all damages and payments for pastcorrespondence with any federal, present state, local or future infringement foreign government or misappropriation political subdivision thereof, or any agency or instrumentality of Intellectual Propertysuch government or political subdivision, the right to use and recover for past infringements or misappropriations any arbitrator, court or tribunal of Intellectual Propertycompetent jurisdiction (each, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvia "Governmental Authority");
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xxsales material and records, strategic plans and marketing and promotional surveys, material and research ("Books and Records"); and
(xvg) all goodwill associated with any real property or interest of the assets described in real property other than the Transferred Real Propertyforegoing clauses.
Appears in 1 contract
Excluded Assets. Notwithstanding anything The Purchased Assets shall not include any assets other than the assets specifically listed or described in Section 2.01(a2.1 and, without limiting the generality of the foregoing, shall expressly exclude the following assets (collectively, the "Excluded Assets"), which shall not be sold or transferred to Buyer:
(a) any shares of capital stock or other equity interests of the Company or its Subsidiaries other than of the Transferred Subsidiaries;
(b) the Company's and its Subsidiaries' qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books and other documents relating to the contraryorganization, no Designated Purchaser shall purchase maintenance and existence of the Company as a corporation, in each such case other than such as relate exclusively to the Transferred Subsidiaries;
(c) insurance policies of the Company and its Subsidiaries, other than those held by the Transferred Subsidiaries, all to the extent provided in the Insurance Claims Agreement;
(d) all tax returns and tax books and tax records of the Company and its Subsidiaries, other than those of the Transferred Subsidiaries;
(e) any and all rights in and to the Intellectual Property owned or otherwise acquire used by the Company or its Subsidiaries which is either referred to in Section 2.2(e) of the Disclosure Letter or does not constitute Business-Related Intellectual Property, except as licensed to Buyer or its Affiliates under the Ancillary Agreements;
(f) any rightassets relating to Compensation and Benefit Plans, title except as set forth in Section 9.1(g) and interest 9.1(h);
(g) the Company's rights under this Agreement and the Ancillary Agreements;
(h) any cash, cash equivalents and short term investments (i) held by the Company or its Subsidiaries other than the Transferred Subsidiaries (other than Carter-Horner Inc.), and (ii) held by Carter-Horner Inc. in or to any assets, rights or properties of excess ▇▇ ▇▇▇ ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:-Horner Retained Cash Amo▇▇▇; ▇▇▇
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(iithe assets re▇▇▇▇▇▇ ▇▇ ▇▇ Section 2.2(i) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real PropertyDisclosure Letter.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained herein, Purchaser expressly understands and agrees that the following assets and properties of Seller and its Affiliates (excluding JCH and its controlled Affiliates) (the “Excluded Assets”) shall be retained by Seller and its Affiliates (other than the Purchased Companies), and shall be excluded from the Purchased Assets, notwithstanding any other provision of this Agreement:
(a) Any and all Cash Amounts (other than any Cash Amounts of the Purchased Entities as of 11:58 p.m. local time in each applicable jurisdiction on the Closing Date to the extent such Cash Amounts are included in the determination of Closing Operating Cash Amounts);
(b) Any and all equity interests in any Affiliate of Seller (other than the Purchased Companies);
(c) Except as set forth in Section 2.01(a5.7, any and all assets related to the Seller Benefit Plans;
(d) Any and all loans and advances, if any, by Seller or its Affiliates (other than the Purchased Companies) to the contrary, no Designated Purchaser shall purchase any of their Affiliates or otherwise acquire to the Business;
(e) Any and all Intellectual Property that is (i) owned by the Seller and its Affiliates, other than the Business IP (including the Seller Marks and the Licensed IP, in each case, subject to the terms of those applicable Transaction Documents), (ii) set forth in Section 2.5(e) of the Seller Disclosure Schedules, (iii) Registered Intellectual Property that is not listed in Section 2.4(d) of the Seller Disclosure Schedules or (iv) owned by Seller and its Affiliates that are embodied in any rightproducts, title services, software or components offered by the Specific Retained Businesses, in each case, subject to the terms of those applicable Transaction Documents (collectively, the “Excluded Intellectual Property”);
(f) Any and interest all IT Assets (including the IT Assets set forth in Section 2.5(f) of the Seller Disclosure Schedules) other than the Business IT Assets;
(g) Any and all Contracts and portions of Contracts, other than the Specified Business Contracts, any Contracts listed on Section 2.4(r) of the Seller Disclosure Schedules and the Transferred Leases;
(h) Except as expressly included in Section 2.4(c), any and all owned and leased real property and other interests in real property;
(i) Any and all refunds of or credits against Excluded Business Taxes;
(j) Other than the Books and Records specified in Section 2.4(n), any and all Books and Records, Tax Returns and other books and records related to Taxes paid or payable by Seller or its Affiliates;
(k) All correspondence between Seller or any of its Affiliates and its legal counsel, advisors or other Representatives arising out of or relating to the negotiation, execution or delivery of this Agreement or the transactions contemplated hereby (or the sales process relating to a potential strategic transaction, joint venture or sale involving the Business), including documents entered into in connection therewith;
(l) Except as set forth in Section 2.4(o), any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not related to the Business, for all periods before, through and after the Closing, including any and all refunds and credits due or to become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies for all periods before, through and after the Closing;
(m) Any and all Permits other than the Transferred Permits;
(n) All rights to receive services and benefits of any kind (including rebates and similar arrangements), including administrative and corporate (overhead, shared and other) services and benefits of the kind provided to the Business by any Seller Entity, either directly or indirectly through third-party service providers (whether under any umbrella, enterprise or shared ownership, license or use arrangement or otherwise), prior to the Closing Date, and all assets of any such Seller Entity related thereto (whether owned, leased or licensed), including (A) computer and information processing services (other than as may be provided through the Transferred IT Assets), (B) finance, accounting and payroll services, (C) facilities management services (including environmental, health and safety), (D) treasury services (including banking, insurance, administration, taxation and internal audit), (E) general and administrative services, (F) executive and management services, (G) legal services, (H) human resources services, (I) risk management services, (J) group purchasing services, (K) corporate marketing, strategy and development services, (L) corporate travel and aircraft services, and (M) investor relations services, in each case of clauses (A) through (M), other than such services that are to be provided to Purchaser or any Purchased Company for the benefit of the Business pursuant to the terms of the Transition Services Agreement and the Controls Supply Agreement or any other supply agreements;
(o) All assets and other rights relating to the Business sold or otherwise transferred or disposed of during the period from the date hereof through and including the Closing Date, in any event in accordance with the provisions hereof, and all rights arising under or relating to any Retained Liabilities;
(p) The Retained Businesses;
(q) All other assets set forth on Section 2.5(q) of the Seller Disclosure Schedules; and
(r) Except for those assets set forth on Section 2.4 of the Seller Disclosure Schedules, any and all assets, rights or properties business lines, properties, rights, Contracts and claims of ▇▇▇▇▇▇, the Seller or their respective any of its Affiliates (other than JCH and its controlled Affiliates) not primarily used, regardless or held primarily for use, in the operation of kindthe Business, description or location or wherever located, whether tangible or intangible, real, personal or mixed. The parties acknowledge and agree that none of Purchaser, except for any of its Affiliates or, after the Closing, the Purchased Assets (the “Companies, will acquire or be permitted to retain any direct or indirect right, title and interest in any Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Johnson Controls International PLC)
Excluded Assets. Notwithstanding anything to the contrary in this Agreement, the following assets (collectively, the “Excluded Assets”) are excluded from the Refinery Assets and shall be retained by Sunoco and the Contributing Subsidiaries after the Closing:
(a) the Upstream Inventory and the Downstream Inventory, in each case subject to the terms and conditions of the Intermediation Transaction pursuant to which such assets shall be sold to the Intermediary, and the Downstream In-Transit Inventory;
(b) all rights and Claims to any assets under any Benefit Plans or any related trusts;
(c) all rights and Claims of Sunoco and any of the Contributing Subsidiaries under or pursuant to this Agreement and the Related Agreements;
(d) all rights and Claims that Sunoco or any of its Affiliates may have, including indemnities, against any other Person with respect to any of the Refinery Assets or the Refinery Business to the extent Liability for such Claims is an Excluded Liability hereunder;
(e) all Contracts set forth on Schedule 2.4(e) (collectively, and any other Contracts not to be assigned hereunder (other than by virtue of Section 2.8), “Excluded Contracts”), the Crude Purchase Obligations, the Downstream In-Transit Sale Obligations, and any rights or claims with respect to an Excluded Contract, which Excluded Contracts shall not be transferred to the Intermediary;
(f) those assets listed in Schedule 2.4(f);
(g) all assets owned by SXL;
(h) except with respect to the Transferred Owned Refinery IP and Refinery Contracts all assets (other than those items identified in Section 2.01(a2.2(b) and the Excluded Contracts) (i) located anywhere other than the Refinery, or (ii) used or held for use in any business other than the Refinery Business, including any asset used or held for use in Sunoco’s retail and branded marketing business and its wholesale rack gasoline and distillate business, including (A) certificates of incorporation or organizational documents, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books, stock certificates and other documents relating to the contraryorganization, no Designated Purchaser shall purchase maintenance and existence of such any Person as a corporation or otherwise acquire any right, title other entity; (B) Books and interest in Records related to Taxes paid or payable by Sunoco or any other Contributing Subsidiary; (C) capital stock of any of Person; and (D) all insurance policies and binders and all Claims from insurance policies or binders due or to become due with respect to such policies or binders for events arising prior to the Closing;
(i) any assets, rights refund of Taxes imposed on or properties of ▇▇with respect to the Refinery Assets or the Refinery Business for any taxable period (or portion thereof) ending before the Closing;
(j) all cash and accounts receivables and other current assets (other than inventory);
(k) the Sunoco Name and ▇▇▇▇, Seller or their respective Affiliatessubject to the Service ▇▇▇▇ Coordination Agreement, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for and other than the Purchased Assets (Marks included in Transferred Owned Refinery IP and assigned in the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationIntellectual Property Assignment;
(iil) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv(other than the Transferred Owned Refinery IP);
(vm) all Intellectual Property computers and related equipment (other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(viRefinery Computer Systems);
(viin) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
Software (viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xixRefinery Software);
(xo) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Credit Support Arrangements; and
(xvp) all of the employment, personnel and medical records relating to any real property or interest in real property other than of the Transferred Real PropertyNon-Hired Employees.
Appears in 1 contract
Sources: Refining Contribution Agreement (Philadelphia Energy Solutions Inc.)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrary2.1, no Designated Purchaser Buyer shall not purchase or otherwise acquire any rightacquire, title and interest in or to any assetsSellers shall retain, rights or the following assets and properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets Sellers (the “Excluded Assets”):
(a) all cash, cash equivalents, bank deposits, similar cash items and securities and bank accounts of Sellers, except for Restricted Cash;
(b) any and all Contracts (other than the Assigned Contracts and the Assumed Plans), including any employment, consulting, bonus, incentive compensation, or other similar compensation-related Contracts with any Employee or other service provider, Contracts primarily related to the following:Overhead and Support Services;
(c) any Overhead and Support Services;
(d) any Tax refunds, Tax deposits, Tax assets and Tax files and records of Sellers;
(e) the corporate seals, organizational documents, minute books, stock books, Tax Returns, and other records having to do with the corporate organization of Sellers;
(f) all personnel and employee benefit-related files and records relating to the Employees;
(g) all insurance policies of Sellers and all rights to applicable claims and proceeds thereunder;
(h) all rights of Sellers and their Affiliates in connection with, and all assets of, the Benefit Plans (other than the Assumed Plans);
(i) all cash taxpayer and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationother identification numbers of Sellers;
(iij) any and all Accounts Receivablerights which accrue or will accrue to Sellers under this Agreement or the Transaction Documents;
(iiik) the equity interest in any Contracts used in Seller or any Affiliates of the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its AffiliatesSellers;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (Al) the Transferred Intellectual Property, and (B) the Additional Assigned Shared Intellectual Property;
(vim) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products except as expressly set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Propertyherein, the right to use names “STERIS”, “Cantel”, “MinnCare”, “Minntech” and recover for past infringements or misappropriations of Intellectual Property, “Medivators” and any adaptations, derivations and all corresponding rights combinations thereof and any trademarks or tradenames that have beenuse or incorporate any such name (collectively, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx“Retained Names”); and
(xvn) any real property assets or interest in real property other than the Transferred Real Propertyproperties set forth on Schedule 2.2(n).
Appears in 1 contract
Sources: Asset Purchase Agreement (Evoqua Water Technologies Corp.)
Excluded Assets. Notwithstanding anything in Section 2.01(a(a) to the contrary, no Designated Purchaser Sellers shall purchase or otherwise acquire any retain their right, title and interest to, in or to any and under the following assets, properties and rights or properties of ▇▇▇▇▇▇the Sellers (such assets to be retained by Sellers, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:):
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationITAR-Controlled Assets;
(ii) any and all Accounts ReceivableIntellectual Property Rights exclusively developed under the DOD/Security Contracts or the Other USG Contracts or provided to Sellers exclusively in connection with the performance of the DOD/Security Contracts or the Other USG Contracts (the “Excluded IP”) (the parties will agree on the list of Intellectual Property Rights that constitute Excluded IP within three (3) Business Days of the date of this Agreement);
(iii) any Contracts used in the Triage Business that relate to Excluded Leases (including the division, corporate office, overhead or back-office functions of Seller and its Affiliates▇▇▇ Arbor Lease);
(iv) except other than those set forth in Section 2.1(a)(xvii), all avoidance claims or causes of action available to the extent included in the Purchased Assets Sellers under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entitychapter 5 of title 11, including Contracts described on Schedule 2.01(b)(iv)Sections 544, 545, 547, 548, 549, 550 and 553 of the Bankruptcy Code;
(v) the Excluded Agreements (including the DOD/Security Contracts and the Other USG Contracts) and any and all Intellectual Property rights thereunder (other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Propertyaccounts receivable under Excluded Agreements that are not DOD/Security Contracts or Other USG Contracts);
(vi) all Inventory, Equipment and other personal property located as of the machineryClosing Date at the Sellers’ research and development facilities in Ann Arbor, equipmentMichigan, mechanical other than personal computers of the Powder R&D Team and spare partsall laboratory Equipment primarily used by the Powder R&D Team and all other Inventory, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media Equipment and fixtures described on Schedule 2.01(b)(vi)other personal property exclusively used by the Government Research Team and Government Solutions Team;
(vii) all current such other facilities and prior insurance assets that may be identified through the parties’ additional engagement with the Committee on Foreign Investment in the United States as being integral to the operations and business of the Government Research Team and Government Solutions Team or the performance of the DOD/Security Contracts and all rights Other USG Contracts; provided however, that no facility or asset shall be included in the definition of any nature with respect thereto“Excluded Assets” pursuant to this clause (vii), including all insurance proceeds received unless Purchaser consents to such inclusion, which consent may not be unreasonably withheld or receivable thereunderdelayed unless such inclusion would reasonably be expected to materially and adversely affect the expected economic or commercial benefits to Purchaser arising from the transactions contemplated hereby;
(viii) all owned or leased desktop computersany prepaid Property Tax with respect to the Purchased Assets that are attributable to Pre-Closing Tax Periods, laptopsand any refund of Excluded Taxes (for the avoidance of doubt, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than any refund of Property Taxes to which the Transferred EmployeesPurchasers are entitled pursuant to Section 7.4(c));
(ix) except for any security deposits made in respect of any Assumed Leases and any prepaid amounts that are a Purchased Asset, all cash and cash equivalents, including checks, commercial paper, treasury bills, certificates of deposit and other Information Technology Assets bank deposits, securities, securities entitlements, instruments and other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix)investments and all bank accounts and securities accounts, including any cash collateral that is collateralizing any letters of credit and all bank accounts of the Sellers;
(x) all assets other than the Foreign Equity Interests and stock or other equity interests in Fisker Automotive, Inc. or 24M Technologies, Inc., any capital stock, securities or other interest of any Seller Plan or held in any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of SellerPerson;
(xi) subject to the provisions of Article VIIIall rights, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaimsactions, refunds, causes of action, choses in action, actions, suits or proceedings, rights of recovery, and rights of set-off setoff, rights of recoupment, rights of indemnity or contribution and other similar rights (known and unknown, matured and unmatured, accrued or contingent, regardless of whether such rights are currently exercisable) against any kind (Person, including all damages warranties, representations, guarantees, indemnities and payments for pastother contractual claims (express, present implied or future infringement or misappropriation of Intellectual Propertyotherwise), the right to use and recover for past infringements or misappropriations of Intellectual Propertyin each case, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described assets, rights and properties set forth in this Section 2.01(b2.2(a) or the Excluded Liabilities;
(xii) prepayments made with regard to insurance policies not otherwise included assumed by Purchasers and security deposits, pre-paid expenses or prepayments to the extent made in Purchased Assets connection with any Excluded Asset or Excluded Liability;
(xiii) Sellers’ rights under Section 2.01(a)(xvi)this Agreement and under any other Transaction Document and all cash and non-cash consideration payable or deliverable to or for the account of any Seller by Purchaser pursuant and subject to the terms and provisions of this Agreement or any Ancillary Agreement;
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion assets of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Foreign Benefit Plan or U.S. Benefit Plan not assumed by any Purchaser; and
(xv) Retained Books and Records; provided that Sellers shall provide, at the Seller’s cost and expense, Purchasers with a copy (and shall allow Purchasers to make a copy) of any real property Retained Books and Records that are related to the Purchased Assets, the Assumed Liabilities or interest in real property the Sellers’ Business or the Joint Venture (other than the Transferred Real PropertyRetained Books and Records described in clause (D) of the definition of Retained Books and Records).
(b) Notwithstanding anything in this Agreement to the contrary, Wanxiang may, in its sole and absolute discretion, at any time on or prior to the date that is one Business Day before the Closing Date, elect not to acquire any of the assets, properties and rights of any Seller, and any asset so designated by Wanxiang shall be an Excluded Asset for all purposes hereunder; provided, however, that with respect to Contracts and Leases, such designation shall be made in accordance with Section 2.9.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) this Agreement to the contrary, no Designated Purchaser expressly understands and agrees that the following assets and properties of the Seller Entities, the Purchased Companies and their respective Subsidiaries (the “Excluded Assets”) shall purchase or otherwise acquire any rightbe retained by the Seller Entities and their Affiliates (other than the Purchased Companies and their Subsidiaries), title and shall be excluded from the Purchased Assets and may be transferred out of the Purchased Companies and their Subsidiaries prior to the Closing:
(a) Any and all legal and beneficial interest in the share capital or equity interest of any Person other than the Purchased Entity Shares and the Purchased Venture Interests (and the Subsidiaries of the Purchased Companies);
(b) Any and all Contracts and portions of Contracts, other than the Specified Business Contracts and the leases relating to the Leased Real Property;
(c) Any and all owned and leased real property and other interests in real property, other than the Leased Real Property;
(d) Any and all Intellectual Property, other than the Business Intellectual Property;
(e) Any and all Tangible Personal Property, other than the Transferred Tangible Personal Property;
(f) Any and all raw materials, work-in-process, finished goods, supplies and other inventories, other than the Inventory;
(g) Any and all Permits, other than the Permits identified as Purchased Assets in Section 2.4;
(h) Any and all claims and defenses (including any Retained Claim), other than the claims and defenses specifically identified as Purchased Assets in Section 2.4;
(i) Any and all documents, instruments, papers, books, records, books of account, files and data, catalogs, brochures, sales literature, promotional materials, certificates and other documents not specifically identified as Purchased Assets in Section 2.4);
(j) Except as set forth in Article VI or with respect to assets of any Purchased Entity Benefit Plans that are Purchased Assets, any and all assets of the Seller Benefit Plans;
(k) Any and all refunds or credits of or against Excluded Business Taxes;
(l) Tax Returns (or any portion of any Tax Return) and other books and records related to Taxes paid or payable by Seller, the Seller Entities or any of their respective Affiliates (other than any such Tax Returns (or any portion thereof) and other books and records specifically identified as Purchased Assets in Section 2.4);
(i) Any and all Cash Amounts (other than any Cash Amounts of the Purchased Companies and their Subsidiaries as of immediately prior to the Closing), and (ii) any and all accounts receivable and other current assets, prepaid expenses and security deposits, including existing letters of credit, bonds securing performance or indemnity and other similar instruments (in each case, other than those arising out of the Business);
(n) Except for the Business Insurance Policies, any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not related to the Business, for all periods before, through and after the Closing, including any and all refunds and credits due or to become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies, binders and interests for all periods before, through and after the Closing (the “Excluded Insurance Policies”);
(o) Except for those assets specifically identified as Purchased Assets in clauses (a) through (p) of Section 2.4, any and all assets, rights or properties business lines, properties, rights, Contracts and claims of ▇▇▇▇▇▇, Seller or their respective Affiliatesany of its Subsidiaries not primarily used, regardless or held primarily for use, in the operation of kindthe Business (including all assets, description business lines, properties, rights, Contracts and claims constituting ownership interests in, or location that are used or held for use in or related to, the Retained Businesses), wherever located, whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xvp) The assets set forth on Section 2.5(p) of the Seller Disclosure Schedules. The Parties acknowledge and agree that neither Purchaser nor any real property of its Subsidiaries will acquire any direct or indirect right, title and interest in real property any Excluded Assets. Subject to Section 2.13, prior to the Closing, Seller shall take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer any Excluded Assets from the Purchased Companies and their Subsidiaries (and, if needed, from the Seller Entities) to Seller or one or more of its Affiliates (other than the Transferred Real PropertyPurchased Companies and their Subsidiaries) for such consideration or for no consideration, as may be determined by Seller in its sole discretion. After the Closing Date, Purchaser shall (at the sole cost and expense of Seller) take all actions (and shall cause its Affiliates (including the Purchased Companies and their Subsidiaries) to take all actions) reasonably requested by Seller to effect the foregoing, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this paragraph after the Closing Date shall be deemed for purposes of calculating the Closing Working Capital, the Closing Cash Amounts and the Closing Funded Debt pursuant to Section 2.9 to have occurred as of immediately prior to 12:01 a.m. (Pacific Time) on the Closing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Aecom)
Excluded Assets. Notwithstanding anything to the contrary herein, Seller shall retain all assets owned directly or indirectly by Seller or any of Seller’s Affiliates which are not among the Acquired Assets, including, without limitation, the following assets of Seller (collectively, the “Excluded Assets”):
(a) all cash, cash equivalents and cash accounts of Seller (except for the Prepaid items as provided in Section 2.01(a2.8(g));
(b) all accounts, notes, interest and other receivables of Seller, including accounts, notes or other amounts receivable from physicians, and all claims, rights, interests and proceeds related thereto, including all accounts and other receivables, disproportionate share payments and cost report settlements related thereto, arising from the rendering of services or provision of goods to inpatients and outpatients at the Hospital, billed and unbilled, recorded and unrecorded, for services and goods provided by Seller prior to the contraryEffective Time whether payable by private pay patients, no Designated Purchaser shall purchase private insurance, Third Party Payors, Medicare, Medicaid, TRICARE, Blue Cross, or otherwise acquire by any rightother source (the “Accounts Receivable”);
(c) all documents, title records, correspondence, work papers and interest other documents relating to the Accounts Receivable, Seller Cost Reports or Agency Settlements (the “Receivable Records”);
(d) the computer software and programs, data processing system manuals and licensed software materials, all as more particularly described in Schedule 2.9(d), which are (i) proprietary to Seller and/or Seller’s Affiliates or (ii) used in connection with the operation of one or more of Seller’s or Seller’s Affiliates’ acute care Hospitals other than the Hospital (and not located at the Hospital);
(e) all of Seller’s or any Affiliate of Seller’s proprietary manuals, marketing materials, policy and procedure manuals, standard operating procedures and marketing brochures, data and studies or analyses;
(f) all assets maintained pursuant to or in connection with any assetsSeller Plan, rights including, any asset which would revert to the employer upon the termination of any Seller Plan, including assets representing a surplus or properties overfunding of any Seller Plan;
(g) the names “Pacer Health Corporation”, “Pacer” and any other names, symbols or world-wide web addresses (including, without limitation, any world-wide web address containing “▇▇▇▇▇▇▇▇▇▇▇.▇▇▇“) not used exclusively at the Hospital, all abbreviations and variations thereof, and trademarks, trade names, service marks, copyrights and any applications therefor, symbols and logos related thereto, together with any promotional material, stationery, supplies or other items of inventory bearing such names or symbols or abbreviations or variations thereof;
(h) all contracts and agreements between Seller or their respective Affiliates, regardless and any Affiliate of kind, description or location or whether tangible or intangible, real, personal or mixedSeller with respect to the operation of the Hospital and/or the Real Property, except for the Purchased Assets (the “Excluded Assets”), including the following:any to be specifically assigned to Purchaser pursuant to this Agreement;
(i) all cash contracts and Cash Equivalentsagreements between Seller or any Affiliate of Seller related to services not provided to the Hospital, including including, without limitation, any cash such contracts or Cash Equivalents residing agreements related to other Seller activities in any collateral account securing any obligation or contingent obligation▇▇▇▇▇▇ County;
(iij) any the portions of Inventory, Prepaids and all Accounts Receivableother assets disposed of, expended or canceled, as the case may be, by Seller after the Agreement Date and prior to the Effective Time in accordance with the terms of this Agreement;
(iiik) any Contracts used in the Triage Business that relate assets owned and provided by vendors of services or goods to the divisionHospital as of the Closing Date, corporate office, overhead or back-office functions of Seller and its Affiliateswhich shall not be removed from the Hospital by Seller;
(ivl) except all claims, rights, interests and proceeds with respect to state or local tax refunds (including but not limited to property tax) attributable to periods prior to the extent included in Effective Time, and the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant right to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)pursue appeals of same;
(vm) all Intellectual of Seller’s corporate record books and minute books;
(n) any real property interests of Seller that are not Owned Real Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual or Leased Real Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(viio) all current and prior insurance Contracts and all rights amounts paid or payable to Seller for covered loss of or property damage to any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate real property interests of Seller;
(xip) subject all claims, rights, interests and proceeds (whether received in cash or by credit to the provisions of Article VIII, any right amounts otherwise due to any refund or credit a third party) with respect to Taxes relating amounts overpaid by Seller to any Pre-Closing Tax Periodthird party with respect to periods prior to the Effective Time (e.g. such overpaid amounts may be determined by billing audits undertaken by Seller or Seller’s consultants);
(xiiq) all bank accounts of Seller;
(r) any claims for coverage under any of Seller’s insurance coverage, including under any liability, business interruption or property insurance policies;
(s) the Registrations used assets owned or leased by Seller or any of its Affiliates in connection with the manufacturing ownership or operation of the Products those medical practices and clinics located in ▇▇▇▇▇▇ County, Georgia and set forth on Schedule 2.01(b)(xii2.9(s);
(xiiit) all claims, counterclaims, causes of action, choses in action, the rights of recovery, and rights Seller or any of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in its Affiliates under this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Agreement; and
(xvu) any real property or interest other assets identified in real property other than the Transferred Real PropertySchedule 2.9(u).
Appears in 1 contract
Excluded Assets. Notwithstanding anything Seller shall retain, and Buyer shall not purchase from Seller, any and all assets, properties and rights that are not included among the Purchased Assets, including (collectively, the “Excluded Assets”):
(a) all cash and cash equivalents, including credit card receivables and checks received pending collection as of the close of business on the Closing Date, notes, bank deposits, certificates of deposit and marketable securities;
(b) except as set forth in Section 2.01(a1.1(g), all fixed assets, including all fixtures, furniture, furnishings, machinery, equipment, tools, jigs, dies, patterns, molds, parts, engineering equipment, communications equipment, accessories, computers and peripheral devices, office and other equipment and appliances, and any replacement and spare parts for any such assets;
(c) all contracts and agreements other than the Assumed Contracts;
(d) all Intellectual Property other than the Conveyed Intellectual Property (collectively, the “Retained Intellectual Property”);
(e) all Permits to the contraryextent not transferable;
(f) Business Records that contain information that does not relate primarily to the Business or the Purchased Assets or that Seller is required to retain by Law (the “Excluded Business Records”);
(g) the Purchase Price to be paid to Seller by Buyer pursuant to this Agreement (excluding any adjustments to the Purchase Price in favor of Buyer pursuant to Section 1.5 or Article V of this Agreement) and all rights of Seller under this Agreement and all other agreements, no Designated Purchaser shall purchase or otherwise acquire documents, certificates and instruments to be delivered at the Closing pursuant to Section 1.6 hereof;
(h) the Inventory set forth on Section 1.2(h) of the Seller Disclosure Schedule in an amount (based on cost) equal to the Negative Reserve;
(i) any rightinterests in any real estate;
(j) all rights and interests under all Seller Employee Plans and funding media, title reserves, insurance and interest in or assets associated with such Seller Employee Plans;
(k) all claims with respect to any assetsbalance or amount due from any Affiliate of Seller;
(l) all security deposits, rights or properties of ▇▇▇▇▇▇, ▇ deposits and all other forms of deposit or security placed by Seller or their respective Affiliates▇▇▇▇▇*s in connection with the Business, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except but only to the extent such deposits are not included in as an asset for purposes of determining Closing Book Value (and, to the extent any deposit is included as an asset for purposes of determining Closing Book Value, such deposit shall be deemed to be a Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(ivAsset);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiiim) all claims, counterclaimsdeposits, prepayments, refunds, rebates, credits, causes of action, choses in action, rights of recovery, rights of setoff and rights of set-off recoupment relating to or arising out of any kind (including all damages and payments for past, present the Excluded Assets or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi)Excluded Liabilities;
(xivn) regardless of whether such assets are owned by Seller, all assets used in connection with the centralized management functions identified on Section 1.2(n) of the Seller Disclosure Schedule provided by Seller, its Affiliates or third party service providers;
(o) all cells lines other than those described in Section 2.01(a)(xx)accounts receivable arising from the operation of the Business prior to the Closing;
(p) all insurance policies and all rights thereunder and proceeds thereof;
(q) all Returns and Tax and accounting records and any related notes, including worksheets, files or documents of Seller or relating to the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Business; and
(xvr) any real property or interest in real property other than the Transferred Real Propertyall minute books, corporate seals, stock record books and stock transfer records of Seller.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained herein, Purchaser expressly understands and agrees that the following assets and properties of the Seller Entities, the Purchased Companies and their respective Subsidiaries (the “Excluded Assets”) shall be retained by the Seller Entities and their Affiliates (other than the Purchased Companies and their Subsidiaries), and shall be excluded from the Purchased Assets and transferred out of the Purchased Companies and their Subsidiaries prior to the Closing, notwithstanding any other provision of this Agreement:
(a) Except as set forth in Section 2.01(a2.4(n) or Section 5.7, any and all assets related to the contrarySeller Benefit Plans;
(b) Any and all loans and advances, no Designated Purchaser shall purchase if any, by the Seller Entities to any of their Affiliates or otherwise to the Business;
(c) Any and all Intellectual Property, other than the Business Intellectual Property and the licenses set forth in Section 5.16(a);
(d) Any and all Contracts and portions of Contracts, other than the Specified Business Contracts and the Real Property Leases;
(e) Except as expressly included in clause (c) of Section 2.4, any and all owned and leased real property and other interests in real property;
(f) Any and all Information Technology, other than the Business Information Technology;
(g) Any and all refunds or credits of or against Excluded Business Taxes;
(h) Tax Returns and other books and records related to Taxes paid or payable by Seller, the Seller Entities or any of their respective Affiliates (other than the Purchased Companies and their Subsidiaries);
(i) Any and all Cash Amounts (other than the Closing Cash Amounts and any Cash Amounts of the Purchased Ventures and their Subsidiaries as of immediately prior to the Closing);
(j) Except to the extent attributable to the Purchased Company Benefit Plans, any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not related to the Business, for all periods before, through and after the Closing, including any and all refunds and credits due or to become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies for all periods before, through and after the Closing;
(k) Any and all Business Permits, other than the Transferred Permits; and
(l) Any and all HomeLink Purchased Assets. The parties acknowledge and agree that neither Purchaser nor any of its Subsidiaries will acquire or be permitted to retain hereunder any direct or indirect right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property other than the Transferred Real Property.
Appears in 1 contract
Sources: Purchase Agreement (Visteon Corp)
Excluded Assets. Notwithstanding anything to the contrary set forth in Section 2.01(a1.1 above, the term "Assets" shall specifically not include:
(a) any animals and all animal equipment, fixtures and supplies used or held for use in connection with the Business, including, but not limited to the contraryanimals, no Designated Purchaser shall purchase equipment and supplies listed on Schedule 1.2(a) attached hereto (collectively, the "Animal Assets");
(b) any Permits, Contracts and Agreements solely related to the Animal Assets;
(c) any intellectual property rights of Sellers and their affiliates listed on Schedule 1.2(c) (collectively, "Sellers' Retained Intellectual Property");
(d) any inventory, uniforms, costumes and supplies that contain, include or otherwise acquire embody Sellers' Retained Intellectual Property and all Coca-Cola and related products and non-owned equipment;
(e) any right, title insurance policies respecting the Sellers or the Business;
(f) any cash and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, cash equivalents (except for cash funds located at the Purchased Assets (the “Excluded Assets”Business), including the following:accounts receivable, notes receivable and other receivables;
(g) any computer hardware containing proprietary information of Parent and its subsidiaries (other than Sellers) listed on Schedule 1.2(g) and any non-assignable computer software listed on Schedule 1.2(g);
(h) any warranties or guaranties or other contractual agreements which are non-assignable and listed on Schedule 1.2(h);
(i) all cash any claims and Cash Equivalentscauses of action (except for insurance proceeds described in Section 1.1(j) hereof) against third parties respecting the Assets or the Business which relate to the period of time on or prior to the Closing Date, including without limitation, any cash proceeds from Tax protests, refunds, rebates or Cash Equivalents residing in any collateral account securing any obligation other recovery of Taxes, or contingent obligationutility refunds, but not including claims relating to the condition of the Assets;
(iij) any and all Accounts Receivableemployment records of any Seasonal Employee or Regular Employee (as defined in Section 10.1) not hired by Buyer as of the Closing Date;
(iiik) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or backmulti-office functions of Seller and its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described park agreements set forth on Schedule 2.01(b)(iv1.2(k);
(vl) all Intellectual any Real Property other than (ALeases described on Schedule 1.2(l) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Propertyattached hereto;
(vim) the machineryAmended and Restated License Agreement, equipmentdated April 1, mechanical 1998, among Warner Bros. Consumer Products Division, DC Comics, Parent and spare partsSix Flags Theme Parks, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(viInc. (the "WB License");
(viin) all current and prior insurance Contracts any Employee Benefit Plan and all rights of any nature with respect insurance policies, trust agreements and other Contracts relating thereto, including all insurance proceeds received or receivable thereunder;
(viiio) all owned or leased desktop computers, laptops, tablets, mobile phones Contracts and similar assets primarily used by employees of Seller or its Affiliates other than Agreements related exclusively to Excluded Assets (the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(x) all assets of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx"Excluded Contracts"); and
(xvp) all Permits related exclusively to Excluded Assets; and
(q) any real property or interest assets set forth on Schedule 1.2(q) hereto (collectively with the items listed in real property other than Sections 1.2(a) through 1.2(p), above, the Transferred Real Property"Excluded Assets").
Appears in 1 contract
Excluded Assets. Notwithstanding anything The parties understand and agree that Seller is not transferring to Buyer any assets or properties not specifically referred to in Section 2.01(a) to 1.1, including without limitation those assets of Seller set forth below (collectively, the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “"Excluded Assets”), including the following:"):
(i) technology, patents and trademarks used by the Business other than Transferred Intellectual Property including, without limitation, all cash formulas, technology, patents, patent applications, invention records, and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationother intellectual property relating to Seller's digester additive product developments (the "Retained Intellectual Property");
(ii) any all rights corresponding to Transferred Intellectual Property outside the United States and all Accounts ReceivableCanada, including the right to make foreign patent applications claiming priority of Transferred Patents;
(iii) cash, cash equivalents, investments and bank accounts;
(iv) any Contracts used in the Triage Business that relate accounts receivable or other current assets, contracts, customer lists and other books and records, licenses and permits, intellectual property, or goodwill to the division, corporate office, overhead extent related directly to or back-office functions arising directly from the Retained Businesses or the Retained Liabilities;
(v) any intercompany receivables owed to Seller by any Affiliate of Seller or any other current intercompany assets of Seller, other than any trade accounts receivable or other accounts receivable or other current assets reflected on the Closing Date Net Working Capital Statement (as defined in Section 2.4.1);
(vi) except as otherwise provided in Article VI, any contracts or assets related to any employee benefit plan in which any employees of Seller or any of its Affiliates participate;
(vii) any refunds, claims to refunds or rights to receive refunds from Federal, state, local and foreign taxing authorities with respect to income, net worth, capital, value added, franchise or other taxes measured by or based upon income or profits ("Income Taxes") paid or to be paid by Seller or any of its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machinery, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
(vii) all current and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
(viii) all owned any records related to Income Taxes paid or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used payable by employees of Seller or any of its Affiliates other than the Transferred EmployeesAffiliates;
(ix) all other Information Technology any insurance policies relating to the Transferred Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix)the Business;
(x) all assets of any Seller Plan or any Seller's corporate charter documents, minute books, stockholder records, stock transfer records, corporate seal and similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Sellercorporate records;
(xi) subject to all tangible assets, including machinery and equipment, spare parts and supplies, accessories, furniture, office and laboratory equipment and supplies, furnishings and fixtures physically located in the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Periodpilot plant on the Harr▇▇▇▇ ▇▇▇ility and listed on SCHEDULE 1.2(xi);
(xii) data processing equipment listed in SCHEDULE 1.2(xii) located at the Registrations used in the manufacturing Owned Real Property which is part of the Products set forth on Schedule 2.01(b)(xii)Seller's central data processing system;
(xiii) all claims, counterclaims, causes inventories of action, choses in action, rights of recovery, and rights of set-off of any kind (including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent related to the items described in this Section 2.01(b) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi);
(xiv) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx); and
(xv) any real property or interest in real property Business other than the Transferred Inventory. Buyer shall grant to Seller access to the Owned Real PropertyProperty after the Closing Date to remove any Excluded Assets not removed prior to the Closing Date.
Appears in 1 contract
Sources: Asset Sale and Purchase Agreement (Geo Specialty Chemicals Inc)