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 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 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 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 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) 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 Buyers expressly understand and agree that the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title following assets 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 Sellers and Sellers’ Affiliates (the “Excluded Assets”), including ) shall be excluded from the followingPurchased Assets:
(a) Sellers’ owned and leased real property other than (i) the Purchased Real Property, (ii) the right, title and interest of Sellers in and to the Leased Real Property pursuant to the Real Estate Leases set forth on Schedule 1.01(b) and (iii) all cash right, title and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationinterest created pursuant to the Lease Agreement and Shanghai Sublease;
(iib) the Intellectual Property (including without limitation any and all Accounts ReceivableTrademarks containing or derived from the word Teradyne and the goodwill appurtenant thereto) owned by Sellers or any of their Affiliates or which Sellers or any of their Affiliates have rights to, other than the Purchased Intellectual Property and the rights granted to Buyers to the Licensed Intellectual Property pursuant to the License Agreement and the Intellectual Property Assignment Agreement;
(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;
(ivc) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviiias set forth on Schedule 2.12(b)(i), any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller EntitySellers’ and their Affiliates’ cash, including Contracts described on Schedule 2.01(b)(ivcash equivalents and liquid investments (plus uncollected bank deposits and less outstanding checks) (“Cash”);
(vd) all Intellectual Property other than (A) refunds, rebates or similar payments of Taxes to the Transferred Intellectual Propertyextent such Taxes were paid by or on behalf of any Asset Seller or any Affiliate of any Asset Seller, and (B) the Additional Assigned Intellectual Propertyor would not otherwise constitute an Assumed Liability;
(vie) Sellers’ and their Affiliates’ (other than the machinerySold Companies’) returns, equipmentdeclarations, mechanical reports, claims for refund, information statements and spare partsthe other documents relating to Taxes, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media including any schedule or attachment thereto and fixtures described on Schedule 2.01(b)(viincluding any amendment thereof (the “Tax Information”);
(viif) all current Sellers’ rights under this Agreement and prior insurance Contracts and all rights of any nature with respect theretoother agreement, including all insurance proceeds received document or receivable thereunderinstrument entered into pursuant to this Agreement;
(viiig) all owned any capital stock of or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller any equity interest or its Affiliates Investment in any Person 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 Sold Company; and
(xvh) any real property Sellers’ and their Affiliates’ rights in the assets listed or interest in real property other than the Transferred Real Propertydescribed on Schedule 2.02(h).
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (Teradyne Inc), Asset and Stock Purchase Agreement (Amphenol Corp /De/)
Excluded Assets. Notwithstanding anything contained in Section 2.01(a) this Agreement to the contrary, no Designated Purchaser shall purchase or otherwise acquire any rightthe following rights, title properties and interest in or to any assetsassets (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”) will not be included in the Assets:
(a) all cash or cash equivalents, bank deposits, marketable securities or notes receivable of Sellers or any of their Affiliates;
(b) all accounts receivable from any Person and any notes receivable from any Person arising out of the operation of the Refinery, the Pipeline or the Business prior to Closing, as well as all amounts, if any, that are receivable by Sellers from their Affiliates;
(c) (i) the Pipeline linefill, (ii) the Retained Product Inventory, and (iii) all other hydrocarbon inventory that Seller will retain title to after Closing in accordance with Exhibit K;
(d) the Excluded Contracts;
(e) all assets and rights involved in the marketing and supply business conducted by Sellers or any Affiliate of Sellers (including the Pipeline linefill and the Retained Product Inventory, but excluding any other physical assets located on or at the Real Property or the Right of Way, which shall form part of the Assets);
(f) the spare parts and other items identified in Section 2.2(f) of the Disclosure Schedules (the “Retained Parts and Spares”);
(g) (i) Proprietary trade names (including the trade names “Valero” and “Premcor” and all variations thereof), including trademarks, service marks, logos, trade dress, insignia, imprints, brand identifications, advertising and trade names of Sellers and all signs and other personal property whose primary purpose is to display any of the following:foregoing, (ii) any proprietary invention, patent, trade secret, copyright, technological information, software or data of Sellers except to the extent expressly included in the Assets, (iii) all documents and communications of Sellers and their Affiliates that are subject to the attorney-client privilege or that comprise attorney work product or the attorney-client relationship, and (iv) all forms and documents which prominently incorporate any of the foregoing;
(h) all assets and rights owned by third parties;
(i) all cash Claims, demands and Cash Equivalentscauses of action that Sellers or any of their Affiliates may have against any Persons (including insurers) relating solely to events, conditions or circumstances existing or occurring at any time prior to Closing (including any cash counterclaims or Cash Equivalents residing in defenses that Sellers may have with respect to any collateral account securing any obligation Retained Liabilities or contingent obligationthe liabilities indemnified against under Section 12.2, Section 12.3 or the Environmental Agreement);
(j) all insurance coverage to which Sellers or any of their Affiliates may be entitled (whether as an additional insured, named insured or otherwise) with respect to any events, conditions or circumstances existing or occurring at any time prior to Closing;
(k) any books and records (i) which constitute corporate, financial, tax and legal records of Sellers unrelated to the Business, (ii) which relate exclusively to, or the retention of which are necessary for the defense of, any of the Retained Liabilities (or the liabilities or obligations indemnified against under Section 12.2 or for which Sellers are responsible under the Environmental Agreement), or (iii) the disclosure of which to Buyers would waive (or would reasonably risk the waiver of) any attorney/client, work product, tax practitioner, audit or other privilege relating to the Retained Liabilities (or the liabilities or obligations indemnified against under Section 12.2 or the liabilities for which Sellers are responsible under the Environmental Agreement), or (iv) which constitute third party data or information that cannot be disclosed or transferred to Buyers without violating legal constraints or legal obligations to the third party owner thereof; provided, however, that subject to the parties entering into a mutually-agreed joint defense agreement(s) to allow for the sharing of common defense privileged materials, Buyers, at Buyers’ expense and upon written request to Sellers, may receive copies of any of the items in the foregoing clauses (ii) and (iii) as well as any other books and records in the possession of Sellers to the extent (and only to the extent) they contain information about the Refinery or the Business that Buyers reasonably need in connection with third party Claims or Litigation arising from the Assumed Obligations or in order to comply with Law. Seller also reserves the right to retain copies (but not originals) of any Books and Records delivered to Buyers pursuant hereto, as may be necessary to comply with Law, to honor Seller’s obligations or enforce Seller’s rights hereunder, or to meet any audit or document retention requirements;
(l) Tax refunds or credits arising out of Taxes paid by Sellers or their Affiliates and all claims of Sellers or their Affiliates for refunds of or loss carry forwards or carry backs with respect to (i) Taxes attributable to any period prior to the Closing Date, or (ii) any and all Accounts ReceivableTaxes attributable to Excluded Assets;
(iiim) all intercompany accounts due to or from Sellers or any Contracts used in the Triage Business that relate of their Affiliates and all intercompany contracts pursuant to which Sellers or any of their Affiliates have agreed to provide management, operational or administrative services or employees to the division, corporate office, overhead or back-office functions of Seller and its AffiliatesSellers;
(ivn) 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)Policies;
(vo) 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 deposits paid 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 Sellers or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Seller;
(xi) subject to their Affiliates in connection with 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 PropertyRefinery, the right to use and recover for past infringements Pipeline, Assets 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)Business; and
(xvp) any real property or interest all rights in real property other than connection with and assets of the Transferred Real PropertySeller Plans.
Appears in 2 contracts
Sources: Asset Purchase Agreement (PBF Energy Inc.), Asset Purchase Agreement (PBF Energy 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) 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 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) The Purchaser and the Seller acknowledge and agree that the Seller does not agree to sell to the contrary, no Designated Purchaser shall and the Purchaser does not agree to purchase from the Seller or otherwise acquire any of its Subsidiaries other than the Transferred Entities any right, title or interest in, to and interest in under any asset, property or to any assetsright other than the Equity Interests and the Purchased Assets. Without limiting the generality of the foregoing, 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 right, title or interest in, to or under any of the following assets, properties or rights of the Seller or any of its Subsidiaries other than the Transferred Entities (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 obligationbank account;
(ii) any and all Accounts Receivablecash, other than Permitted Cash as of the Effective Time;
(iii) any Contracts used securities, stock, membership or equity interests or similar ownership rights in any Person, other than the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its AffiliatesEquity Interests;
(iv) except with respect to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii)Assets, any Contracts pursuant rights to which rights in Intellectual Property are granted Tax refunds or credits relating to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(ivTax for any Pre-Closing Period (other than any Tax refunds or credits in respect of Taxes reflected or accounted for in Closing Net Working Capital);
(v) all Intellectual Property the company seal, minute books, charter documents, stock or equity record books and such other than (A) books and records pertaining to the Transferred Intellectual Propertyorganization, and (B) existence or capitalization, as well as any other records or materials generally, in each case, not involving or related to, the Additional Assigned Intellectual PropertyPurchased Assets or the operations of the Business;
(vi) the machineryall Excluded Intellectual Property, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)except as expressly licensed pursuant to Section 5.10;
(vii) all the Headquarters Lease (other than any sublease thereof contemplated pursuant to Section 5.12);
(viii) any rights of the Seller under this Agreement and the Ancillary Agreements;
(ix) except as otherwise expressly provided in this Agreement, any current and prior insurance Contracts policies and all any 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 action, choses in action, rights of recoveryrecovery for reimbursement, and rights of set-off of contribution, refunds, indemnity or other similar payment recoverable by the Seller from or against 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) third party to the extent related to any Excluded Liabilities;
(xi) except for the items IT Assets included in the Purchased Assets, the IT Assets owned or used by the Seller or any of its Affiliates, including those used to provide services under the Transition Services Agreement;
(xii) (A) all attorney-client privilege and attorney work-product protection of the Seller or associated with the Business as a result of legal counsel representing the Seller or the Business in connection with the transactions contemplated by this Agreement, the process conducted by the Seller and its Representatives for the sale of the Business or the Seller’s entry into the Merger Agreement; (B) all documents subject to the attorney-client privilege and work-product protection described in the immediately preceding clause (A); and (C) all documents prepared by the Seller or any of its Representatives, or received by the Seller or any of its Representatives from any Person, in connection with the transactions contemplated by this Section 2.01(bAgreement, the process conducted by the Seller and its Representatives for the sale of the Business or the Seller’s entry into the Merger Agreement; provided, however, that the Purchaser shall be entitled to assert (but not, for the avoidance of doubt, to waive) any such privilege or protection in connection with any third party claim not otherwise included in Purchased Assets under Section 2.01(a)(xviinvolving the Seller or any of its Affiliates (including for this purpose any ESL Person), on the one hand, and the Purchaser or any of its Affiliates (including for this purpose any Vintage Person), on the other hand;
(xiii) any Employee Plan (other than a Company Employee Plan) and any assets of any such Employee Plan; and
(xiv) all cells lines rights in respect of any loans made by the Seller or any of its Subsidiaries to current or former employees of the Seller and its Subsidiaries, other than those described in current or former Business Employees. For the avoidance of doubt, subject to Section 2.01(a)(xx5.7(a), including the remaining portion Excluded Assets do not include any assets, properties or rights 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 PropertyEntities.
Appears in 2 contracts
Sources: Equity and Asset Purchase Agreement (Liberty Tax, Inc.), Equity and Asset Purchase Agreement (Sears Hometown & Outlet Stores, Inc.)
Excluded Assets. Notwithstanding anything The Purchased Assets do not include any property or assets of Seller not described in Section 2.01(a) 2.1 and, notwithstanding any provision to the contrarycontrary contained in Section 2.1 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 the Purchased Assets do not include any of the following property or assets of Seller (all assets excluded pursuant to this Section 2.2 are referred to in this Agreement as the “Excluded Assets”), including the following:):
(i1) all cash, cash equivalents and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationbank deposits;
(ii2) any and all Accounts Receivablereal property or real property interests of Seller not described on Exhibit 2.1(1);
(iii3) any Contracts machinery, equipment, tools, furniture, furnishings or other fixed assets of Seller not described on Exhibit 2.1(2);
(4) inventory of supplies, stores, tools, parts or materials of Seller not used in the Triage Business that relate operation of the Projects;
(5) receivables or other rights to receive payments to the divisionextent attributable to any period prior to the Effective Time;
(6) books, corporate officerecords, overhead or back-office functions the like other than the Documents;
(7) assets that have been disposed of prior to the Closing Date without violation of this Agreement;
(8) the rights of Seller arising under or in connection with this Agreement, any Ancillary Agreement, or any certificate or other document delivered in connection with this Agreement or any Ancillary Agreement, or any of the transactions contemplated by this Agreement or by any Ancillary Agreement;
(9) certificates of deposit, shares of stock (other than the WVIC Shares), securities, bonds, debentures, evidences of indebtedness, and any other debt or equity interest in any Person;
(10) the names “NewPage,” “NewPage Wisconsin System,” “NewPage Wisconsin System Inc.,” “SENA,” “Stora Enso North America,” “Consolidated Water Power,” “Consolidated Water Power Company” and any derivative of any of the foregoing, and any related, similar, and other trade names, trademarks, service marks, and logos 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 2 contracts
Sources: Asset Sale Agreement, Asset Sale Agreement (NewPage CORP)
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 in Section 2.01(a) to Other than the contraryPurchased Assets, no Designated Purchaser shall purchase Buyer expressly understands and agrees that it is not purchasing or otherwise acquire acquiring, and Seller is not selling, assigning transferring or conveying, any right, title and interest in or to any other assets, properties or rights or properties of ▇▇▇▇▇▇, Seller or their respective any of its Affiliates, regardless of kindand all such other assets, description or location or whether tangible or intangible, real, personal or mixed, except for properties and rights shall be excluded from the Purchased Assets (the “Excluded Assets”). The Excluded Assets include, without limitation, the following assets and properties of Seller:
(a) [reserved];
(b) all cash and cash equivalents, deposits, bank accounts, short-term investments, securities, equity interests and capital stock held by Seller or its Affiliates;
(c) all accounts receivable of Seller or its Affiliates, except to the extent that such receivable is related solely to a Purchased Asset;
(d) any agreement, Contract, obligation or other undertaking of Seller or any of its Affiliates other than the Assigned Contracts, including any Contract related to the following:Excluded Businesses and the Contracts listed on Schedule 2.02(d) (each, an “Excluded Contract”);
(e) all of Seller’s investor, repurchase, warehouse and similar liquidity and financing agreements or arrangements and any agreements or arrangements related to the Pipeline Loans, including interest rate locks and related ▇▇▇▇▇▇;
(f) Seller’s Intellectual Property other than the Purchased IP;
(g) the corporate seals, Organizational Documents, minute books, stock books, Tax Returns, books of account or other records having to do with the corporate organization of Seller, and all employee-related or employee benefit-related files or records;
(h) all rights of Seller to Tax refunds, rebates and similar repayments of Taxes, in each case with respect to any Tax period ending on or before the Closing Date;
(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 insurance policies 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 Affiliates and all rights of any nature with respect thereto, including all insurance to applicable claims and proceeds received or receivable thereunder;
(viiij) all owned Seller Benefit Plans and trusts or leased desktop computers, laptops, tablets, mobile phones and similar other assets primarily used by employees of Seller or its Affiliates other than the Transferred Employeesattributable thereto;
(ixk) all other Information Technology Assets other than those described except as otherwise provided in Section 2.01(a)(xviii) 2.01(i), all rights to any Action available to or Section 2.01(a)(xix)being pursued by Seller, whether arising by way of counterclaim or otherwise;
(xl) all assets of any the rights which accrue or will accrue to Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Sellerunder the Transaction Documents;
(xim) subject any asset, property or right of Seller relating to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax PeriodExcluded Businesses;
(xiin) the Registrations used in the manufacturing any contracts or instruments 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 Seller related 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 hedging risk related 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)loan, 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)Pipeline Loans; and
(xvo) for the avoidance of doubt, any real asset, property or interest in real property other than the Transferred Real Propertyright of any Affiliate of Seller.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Impac Mortgage Holdings Inc), Asset Purchase Agreement (Impac Mortgage Holdings 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 2 contracts
Sources: Purchase Agreement (Eg&g Inc), Purchase Agreement (Eg&g Inc)
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 Other than the Purchased Assets subject to Section 2.01(a) to 2.01, Buyer expressly understands and agrees that it is not purchasing or acquiring, and the contrarySeller Parties are not selling or assigning, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any assets, rights other assets or properties of ▇▇▇▇▇▇the Seller Parties, 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 assets and properties listed below shall be excluded from the Purchased Assets (the “Excluded Assets”). Excluded Assets are the following assets and properties of the Seller Parties:
(a) all cash and cash equivalents, bank accounts and securities of the Seller Parties (other than the equity interests in the Singapore Subsidiary and the Delaware Subsidiary);
(i) the first accounts or notes receivable of the Business collected after the Closing by the Seller Parties, Buyer or any of their respective Affiliates in an aggregate amount equal to the Net Working Capital Adjustment Amount, as set forth on the Estimated Closing Statement (“Excluded Business Accounts Receivable”), and (ii) all accounts or notes receivable of the businesses of the Seller Parties other than the Business;
(c) all Contracts that are not Assigned Contracts;
(d) all Intellectual Property of the Seller Parties other than the Intellectual Property Assets;
(e) the corporate seals, organizational documents, minute books, stock books, Tax Returns and related records and workpapers, books of account or other records having to do with the corporate organization of the Seller Parties (other than the Singapore Subsidiary and the Delaware Subsidiary), all employee-related or employee benefit-related files or records, other than personnel files of Transferred Employees, and any other books and records which the Seller Parties are prohibited from disclosing or transferring to Buyer under applicable Law and is required by applicable Law to retain;
(f) all insurance policies of the Seller Parties and all rights to applicable claims and proceeds thereunder except as set forth in Section 2.01(i);
(g) all Benefit Plans and trusts or other assets attributable thereto;
(h) all Tax Assets (including duty and Tax credits, Tax refunds and prepayments of Taxes) of the following:Seller Parties or any of their Affiliates (other than the Singapore Subsidiary and the Delaware Subsidiary) (notwithstanding the foregoing, any Tax credit, Tax refund, prepayment or overpayment of Taxes of the Singapore Subsidiary or the Delaware Subsidiary for any period or portion thereof ending on or prior to the Closing Date, determined as provided in Section 6.12, shall be an Excluded Asset hereunder and Buyer and its Affiliates shall cause the amount of any such Tax credit, Tax refund, prepayment or overpayment of Taxes received or paid by the Singapore Subsidiary or the Delaware Subsidiary (together with the amount of any interest thereon) for any such period to be promptly delivered to Parent);
(i) all cash and Cash Equivalentsrights to any action, including suit or claim of any cash nature available to or Cash Equivalents residing in being pursued by the Seller Parties, whether arising by way of counterclaim or otherwise, to the extent relating to any collateral account securing Excluded Asset or any obligation or contingent obligationLiability that is not an Assumed Liability;
(iij) any the assets, properties and all Accounts Receivablerights listed on Section 2.02(j) of the Disclosure Schedules;
(iiik) all securities or other equity interests of any Contracts used in Person owned or held by the Triage Business that relate to Seller Parties other than the division, corporate office, overhead or back-office functions of Seller Singapore Subsidiary and its Affiliatesthe Delaware Subsidiary;
(ivi) except all attorney-client privilege and attorney work-product protection of the Seller Parties or associated with the Business as a result of legal counsel representing the Seller Parties in connection with the transactions contemplated by this Agreement or any of the Transaction Documents, (ii) all documents subject to the extent included attorney-client privilege or work-product protection described in the Purchased Assets under Section 2.01(a)(vclause (i) 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 Propertyof this paragraph, 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);
(viiiii) all current and prior insurance Contracts and all rights of any nature documents maintained by the Seller Parties in connection 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 the transactions 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)(xix);
(x) all assets of any Seller Plan this Agreement 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)Transaction Documents; and
(xvm) any real property the rights which accrue or interest in real property other than will accrue to the Transferred Real PropertySeller Parties under the Transaction Documents.
Appears in 1 contract
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 Assets shall not include, 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 and Cash Equivalentscash equivalents, securities (other than the Interests) 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, all Accounts Receivableaccounts, notes and other receivables resulting from sales prior to the Closing Date by Parent or its Affiliates of products to the extent generated by the Businesses, whether current or non-current;
(iii) except as otherwise expressly set forth in this Agreement or the Ancillary Agreements including in Section 2.01(a) hereof, the ownership right in any Contracts property or asset (other than Intellectual Property), including Contracts, that is used in the Triage Business that relate to Businesses, but is used primarily in businesses of Parent other than the division, corporate office, overhead or back-office functions of Seller and its AffiliatesBusinesses (a "Shared Asset(s)");
(iv) except all real property of Parent and its Affiliates (including any of Parent's or its Affiliates' right, title and interest as a tenant or otherwise and the Real Property contemplated to be leased to Buyer under the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviiiLease Agreement), 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 Owned Business Real Property;
(v) the EVAR Business, the PCBA Business, the Peripheral Intervention Business, the Embolic Beads Business and all Intellectual Property other businesses of Parent and its Affiliates other than the Businesses (A) collectively, the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property"Excluded Businesses");
(vi) subject to Section 5.06(c) 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 rights or interests of a Transferred Subsidiary in, and all rights of assets of, any nature with respect thereto, including all insurance proceeds received or receivable thereunderParent Plans;
(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 any other Information Technology Assets partnerships with, other than third-party businesses (equity, debt or otherwise), whether or not related to the Businesses (collectively, "Parent Investments"), including those described in listed on Section 2.01(a)(xviii2.01(c)(ix) or Section 2.01(a)(xix)of the Seller Disclosure Schedule;
(x) all assets rights of any Seller Plan Parent and its Affiliates (other than the Transferred Subsidiaries) arising under this Agreement or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate from the consummation of Sellerthe transactions contemplated hereby;
(xi) subject to any claim, right or interest of the provisions of Article VIII, Parent and any right Transferred Subsidiary in or to any refund refund, credit or credit other recovery for Taxes with respect to Taxes relating to any Pre-Closing Tax Period;; and
(xii) the Registrations used any right, title and interest in the manufacturing or to any of the Products set forth assets including Contracts related thereto, listed on Schedule 2.01(b)(xii);
(xiiiSection 2.01(c)(xii) 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 PropertySeller Disclosure Schedule.
Appears in 1 contract
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 obligationSCHEDULE 1.14;
(iij) any and all Accounts Receivable;
(iii) of the assets specified in any Contracts used in of the Triage Business Annexes or included within the definition of Assets herein 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 partnership 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 other entity which is 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 EXHIBIT B hereto but does 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 become an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Other Entity; and
(xvk) 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) herein to the contrary, no Designated Purchaser shall purchase or otherwise acquire any from and after Closing, Seller and the Seller Affiliates will retain all of their respective existing right, title and interest in and to, and there will be excluded from the sale, conveyance, assignment or transfer to Sub hereunder, and the Transferred Assets will not include, the following, in each case as the same exists on the Closing Date (collectively, the "Excluded Assets"):
(a) all assets, agreements, contracts, leases, purchase orders, arrangements, commitments, licenses and rights which are not Primarily Related to the Business;
(b) all cash and cash equivalents, and all capital stock or other equity interests or securities, whether or not Primarily Related to the Business or related to any assetsTransferred Asset;
(c) all accounts receivable not reflected on the accounting system maintained in the San Diego facility of the Business, rights or properties and all intercompany accounts receivable;
(d) all employee benefit plans of ▇▇▇▇▇▇, Seller or their respective Affiliatesa Seller Affiliate, regardless other than the Transferred Benefit Plans, applicable to employees of kindthe Business;
(e) independent contractor, description consulting and similar agreements with former employees of the Business;
(f) other than the leasehold or location possessory interests created by the Assumed Leases or whether tangible or intangiblethe Ancillary Agreements, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”)all real property, including land, buildings, structures and improvements thereon, appurtenances thereto and interests therein, and all fixtures constituting part of such real property;
(g) the followingfollowing Intellectual Property:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationthe Corporate Trademarks;
(ii) any and all Accounts Receivablethe Seller-Licensed Intellectual Property (other than the license interests created pursuant to Section 2.3(a));
(iii) any Contracts used in the Triage Business all product development projects other than those that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliates;are set forth on Schedule 2.1(f)(iii); --------------------
(iv) except all agreements, contracts, licenses and sublicenses with respect 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 Entityowned by third parties, including Contracts described on Schedule 2.01(b)(iv);other than the Transferred Licenses; and
(v) all other Intellectual Property other than (A) that is not the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vih) the machinery, equipment, mechanical and spare all parts, suppliessubassemblies and other internally sourced components customarily supplied to the Business by Seller or its Affiliates and, toolsas of the Closing Date, not yet purchased by the Business in the Ordinary Course, and all tooling, jigsraw materials and supplies related to such components;
(i) all assets that are used: (i) to manufacture parts, moldssubassemblies, dies, production supplies, samples, media tooling supplies and fixtures described on Schedule 2.01(b)(viother internally sourced components customarily supplied to the Business by Seller or its Affiliates; (ii) in Seller's or its Affiliates' product service and support operations other than those such operations Primarily Related to the Business; or (iii) for administrative purposes other than those Primarily Related to the Business (except for those such assets located at the San Diego facility of the Business);
(viij) all current refunds, overpayments and prior insurance Contracts prepayments of Taxes and all rights of any nature with respect thereto, including all insurance proceeds received duties paid by Seller or receivable thereundera Seller Affiliate;
(viiik) all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees Tax Returns of Seller or and its Affiliates and all other than the Transferred EmployeesBooks and Records (including work papers) related thereto;
(ixl) all other Information Technology Assets other than those described in Section 2.01(a)(xviiiBooks and Records which are: (i) personnel files or Section 2.01(a)(xix)employee medical records; or (ii) human resources manuals, training materials and similar documents not Primarily Related to the Business;
(xm) except for the items specified in Section 2.1(j), all internet, intranet and World Wide Web content, addresses, sites and pages, and all HTML and other code, plug-ins, scripting, computer hardware and software related thereto;
(n) 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 Business that are located in the Products Ordinary Course in Japan or Korea; and
(o) the assets, if any, that are set forth on Schedule 2.01(b)(xii2.2(o);
(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 Purchase Agreement (Roper Industries Inc /De/)
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(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 Section 2.01(a(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 following assets (the “"Liberty Sub Excluded Assets”)") are not included in the Liberty Sub Acquired Assets, including and Liberty Sub shall not transfer, assign or convey to Holdings and Holdings shall not acquire from Liberty Sub the followingfollowing assets:
(i) all cash corporate minute books, seals, stock records and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationother corporate documentation of Liberty Sub;
(ii) any all tax returns, reports, forms and all Accounts Receivableother tax records pertaining to Liberty Sub or Liberty Sub's operations prior to the date of Closing (collectively, "Liberty Sub Tax Records");
(iii) any Contracts used in the Triage Business that relate intercompany debt owing to the division, corporate office, overhead or back-office functions of Seller Liberty Sub including all interest thereon and its Affiliatesall other intercompany agreements;
(iv) except to the extent included in name "Liberty" or any trade names, trademarks, identifying logos or service marks employing the Purchased Assets under Section 2.01(a)(v) words "Liberty Group Publishing" or Section 2.01(a)(xviii)any part or variation thereof or any confusingly similar trade name, any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entitytrademark or logo (collectively, including Contracts described on Schedule 2.01(b)(ivthe "Liberty Group Trademarks and Logos");
(v) all Intellectual Property other than (A) any rights or claims of Liberty Sub or any of its Affiliates related to or contingent on the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Propertysatisfaction of Liberty Sub Retained Liabilities or Liberty Sub Excluded Assets;
(vi) the machinery, equipment, mechanical all insurance policies and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media binders owned or held by Liberty Sub or any of its Affiliates and fixtures described on Schedule 2.01(b)(vi)claims with respect thereto;
(vii) all current rights and prior insurance Contracts and all rights claims which Liberty Sub or any 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 may have for refund or credit with respect to Income Taxes relating (including estimated Income Taxes);
(viii) any claim, right or obligation owing to Liberty Sub from any Preof its Affiliates, including, without limitation, on account of any inter- or intra-Closing Tax Periodcompany indebtedness;
(ix) any corporate allocations to health and welfare, and property and casualty insurance, including, without limitation, prepaid insurance expenses, pension expenses and workers' compensation expenses;
(x) any assets of a Liberty or Liberty Sub Benefit Plan, except as expressly provided in Section 10.1;
(xi) the items referred to in the proviso to the definition of Liberty Sub Records;
(xii) all rights of Liberty or Liberty Sub under (i) this Agreement, (ii) the Registrations used Letter of Intent dated as of March 5, 1999 (the "LOI"), between Liberty and Holdings, (iii) all documents and analyses prepared by Liberty Sub or any of its Affiliates for internal evaluation purposes in connection with the manufacturing sale of the Products set forth on Schedule 2.01(b)(xii)Liberty Newspapers and the Liberty Sub Business, and (iv) any Ancillary Instrument;
(xiii) the items referred to in Section 1.3 of the Liberty Sub Disclosure Letter (including, but not limited to, the Ridg▇▇▇ ▇▇▇l Property); and
(xiv) cash on hand and in bank accounts and other investment accounts and cash equivalents, including, but not limited to, investments securities as of Closing.
(b) The following assets ("Holdings Excluded Assets") are not included in the Holdings Acquired Assets and Holdings shall not transfer assign or convey to Liberty Sub and Liberty Sub shall not acquire from Holdings the following assets:
(i) corporate minute books, seals, stock records and other corporate documentation of Holdings;
(ii) all claimstax returns, counterclaimsreports, causes forms and other tax records pertaining to Holdings or Holdings' operations prior to the date of actionClosing (collectively, choses in action, rights of recovery, and rights of set-off of "Holdings Tax Records");
(iii) any kind (intercompany debt owing to Holdings including all damages interest thereon and payments for pastall other intercompany agreements;
(iv) the name "Newspaper Holdings" or "Community Newspaper Holdings" or any trade names, present trademarks, identifying logos or future infringement service marks employing the words "Community Newspaper Holdings" or misappropriation of Intellectual Property"Newspaper Holdings" or any part or variation thereof or any confusingly similar trade name, trademark or logo (collectively, the right "Holdings Trademarks and Logos");
(v) any rights or claims of Holdings or any of its Affiliates related to use or contingent on the satisfaction of Holdings Retained Liabilities or Holdings Excluded Assets;
(vi) all insurance policies and recover binders owned or held by Holdings or any of its Affiliates and claims with respect thereto;
(vii) all rights and claims which Holdings or any of its Affiliates may have for past infringements refund or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world credit with respect to Income Taxes (including estimated Income Taxes);
(viii) any Intellectual Propertyclaim, right or obligation owing to Holdings from any of its Affiliates, including, without limitation, on account of any inter- or intra-company indebtedness;
(ix) any corporate allocations to health and welfare, and property and casualty insurance, including, without limitation, prepaid insurance expenses, pension expenses and workers' compensation expenses;
(x) any assets of a Holdings Benefit Plan, except as expressly provided in Section 10.2;
(xi) the items referred to in the proviso to the extent related to definition of Holdings Records;
(xii) all rights of Holdings under (i) this Agreement, (ii) the items described LOI, (iii) all documents and analyses prepared by Holdings or any of its Affiliates for internal evaluation purposes in this Section 2.01(bconnection with the sale of the Holdings Newspapers and the Holdings Business, and (iv) any Ancillary Instrument;
(xiii) any contract, agreement or not otherwise included in Purchased Assets under Section 2.01(a)(xvi)other arrangement with the Retirement System of Alabama or any of its Affiliates;
(xiv) all cells lines cash on hand and in bank accounts and other than those described in Section 2.01(a)(xx)investment accounts and cash equivalents, including the remaining portion including, but not limited to, investment securities as of any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Closing; and
(xv) the contracts, leases, licenses and other agreements (whether written or oral) listed in Section 1.3 of the Holdings Disclosure letter, including, but not limited to, that certain Transitional Services Agreement dated as of February 1, 1999 by and between American Publishing Management Services, Inc. and Holdings and any real property other contract, agreement or interest in real property understanding (whether written or oral with Holl▇▇▇▇▇ ▇▇▇ernational Inc. or its current or former affiliates or publications (including, but not limited to, the Northwest Arkansas Times) regarding printing or other than services or which provide for a payment or other penalty upon the Transferred Real Propertytermination or assignment thereof (collectively, the "Holdings Excluded Contracts").
Appears in 1 contract
Sources: Asset Exchange Agreement (Liberty Group Publishing Inc)
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 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 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 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 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 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 to the contrary contained in this Agreement, except as expressly set forth in Section 2.01(a) to 1.1(a), the contrary, no Designated Purchaser shall purchase or otherwise Buyer will not acquire any rightof the following (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”), including the following:;
(i) all cash All of the Beneficial Owners’, the Seller Related Parties’ or the Company’s rights under this Agreement or any Ancillary Agreement and Cash Equivalentsto the consideration to be delivered to the Beneficial Owners, including the Seller Related Parties and the Company pursuant to this Agreement or any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationAncillary Agreement;
(ii) any All minute books of the Beneficial Owners, the Seller Related Parties’ and all Accounts Receivablethe Company, including the organizational documents of the Beneficial Owners, the Seller Related Parties’ and the Company (collectively, the “Minute Books”);
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its AffiliatesAll Cash;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), All Company Benefit Plans and 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)assets related thereto;
(v) all Intellectual Property All Contracts, other than the Assumed Contracts, including (A) all Contracts with any Affiliate of the Transferred Intellectual PropertyBeneficial Owners, and the Company or a Related Party, or (B) any Contract with financial, accounting, transaction, legal or tax advisors of the Additional Assigned Intellectual PropertyBeneficial Owners or the Company (collectively, the “Excluded Contracts”);
(vi) the machineryAny Tax Return, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)Tax records and/or refunds or credits in respect of Taxes;
(vii) all current Any of the Beneficial Owners’, the Seller Related Parties’ or the Company’s (or their predecessors’) employee and prior insurance Contracts personnel records, files, papers, data and all rights of related information, including any nature with respect correspondence related thereto, including all insurance proceeds received or receivable thereunderin whatever form (collectively, the “Personnel Records”);
(viii) Any documents or other information covered by attorney-client privilege, the attorney work product doctrine, or other similar legal protection, including all owned attorney-client privileged or leased desktop computerswork product communication between the Company and its legal advisors relating to the Contemplated Transactions (collectively, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees“Privileged Records”);
(ix) all other Information Technology Assets other than those described Any equity interests of the Company held or owned by the Beneficial Owners or equity interest in Section 2.01(a)(xviii) the Beneficial Owners or Section 2.01(a)(xix)the Seller Related Parties held or owned by the Company or the Seller Related Parties;
(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 SellerAll Retained Policies;
(xi) subject to All equity or other rights of or in the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;Seller Related Parties; and
(xii) Such other assets listed on the Registrations used in the manufacturing of the Products set forth on attached Schedule 2.01(b)(xii1.1(b)(xi);
(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 Purchase Agreement
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 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 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 Buyer expressly understands and agrees that all of the contrary, no Designated Purchaser assets of Seller and the Retained Subsidiaries other than the Transferred Assets 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 any cash or Cash Equivalents residing equivalents on hand and in any collateral account securing any obligation or contingent obligationbanks;
(iib) any and all Accounts Receivablebank accounts not exclusively related to the Business;
(iiic) any Contracts used in the Triage Business that relate subject to Section 5.06, all insurance policies not exclusively related to the divisionBusiness and all claims, corporate officecredits, overhead causes of action or back-office functions of Seller and its Affiliatesrights thereunder;
(ivd) except to all real property (other than the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviiiReal Property), any Contracts pursuant to which rights together with all buildings, fixtures and improvements erected thereon, and the leases of, and other interests in such real property;
(e) all Intellectual Property are granted to any Asset Seller EntityRights (other than the Assigned Intellectual Property Rights), including Contracts described on Schedule 2.01(b)(ivthe ▇▇▇▇▇▇▇ Trademarks and the ASCO Trademarks;
(f) all Software (other than the Assigned Software) (the “Excluded Software”);
(vg) all Intellectual Property IT Assets (other than the Assigned IT Assets) (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“Excluded IT Assets”);
(viih) all current books, records, files and prior insurance Contracts papers, whether in hard copy or electronic format, prepared in connection with this Agreement, the other Transaction Documents or the announced spinoff of the Business from Seller or the transactions contemplated #88639600v31 hereby or thereby, all minute books and corporate records of Seller and the Retained Subsidiaries, and Information to the extent not included within Transferred Assets;
(i) 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;
(viiij) all owned assets of the Business Benefit Plans (other than the Transferred Subsidiary Benefit Plans and the Assumed Plans as provided in Section 2.02(p)), except as otherwise expressly provided in Article 9;
(k) the personnel records (including all human resources and other records) of Seller or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by a Retained Subsidiary relating to employees of Seller or its Affiliates such Retained Subsidiary;
(l) any Existing Litigation Right;
(m) all hedging or swap contracts, agreements or similar arrangements (such contracts, to the extent relating primarily to the Business, the “Hedging Contracts”);
(n) the Master Supply Agreements listed in Section 2.03(n) of the Disclosure Schedule (such contracts, agreements and obligations collectively, the “Master Supply Agreements”);
(o) all Tax Assets, as well as any rights to Tax refunds or credits in respect of Tax overpayments;
(p) all equity interests of Seller in entities 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)Subsidiaries; and
(xvq) any real the other property or interest and assets described in real property other than Section 2.03(q) of the Transferred Real PropertyDisclosure Schedule.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary set forth herein, no Designated Purchaser it is expressly understood and agreed that the Purchased Assets shall purchase or otherwise acquire any not include Seller’s 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”), 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;
(iiA) any assets (including all rights, properties, claims, contracts, business, real property, leasehold interests in real property, equipment, machinery, vehicles, tools and all Accounts Receivable;
other tangible personal property) other than those expressly set forth in Sections 1.1(A) through (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)(ivM);
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) the machineryassets, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described properties or rights identified on Schedule 2.01(b)(vi1.2(B);
(viiC) all current cash, cash equivalents or similar type investments, bank accounts, certificates of deposit, security deposits, Treasury bills and prior insurance Contracts and all rights of other marketable securities (collectively “Cash”), other than any nature with respect thereto, including all insurance proceeds received or receivable thereunderClosing Cash;
(viiiD) the capital stock of all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees Subsidiaries of Seller or its Affiliates and any other equity ownership interests of Seller (other than the Transferred EmployeesSinglePlatform);
(ixE) the contracts, agreements, leases and other arrangements that are not Assigned Contracts, including those identified on Schedule 1.2(E) (the “Excluded Contracts”);
(F) the rights of Seller which accrue or will accrue under this Agreement and the other Transaction Documents;
(G) all Benefit Plans and Benefit Arrangements sponsored, maintained, or contributed to by Seller or any ERISA Affiliate and all assets attributable thereto;
(H) any intercompany account of any kind or nature;
(I) all Tax refunds, Tax deposits, and other Information Technology Assets Tax assets of Seller;
(J) all Tax books and records and Tax Returns of Seller, other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix1.1(K);
(xK) all assets insurance policies and all rights of any Seller Plan or any similar benefit planto insurance claims, program or arrangement that is maintained or contributed to by any Seller or Affiliate of Sellerrelated refunds and proceeds thereunder;
(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;
(xiiL) the Registrations used in corporate seals, governing documents, minute books, stock books, Tax Returns, books of account or other records having to do with the manufacturing corporate organization of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claimsSeller or any business of Seller, 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)(xx1.1(K), 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;
(xvM) all personnel records;
(N) any owned or leased real property of Seller, whether or interest not used in real property connection with the Business, other than the Transferred Real PropertyLeased Facility; and (O) the Retained Working Capital.
Appears in 1 contract
Sources: Asset Purchase Agreement (Endurance International Group Holdings, Inc.)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary herein, no Designated Purchaser shall purchase Buyer is not acquiring hereunder or otherwise acquire any rightof Seller’s or its Affiliates’ or related entities’ right and title to, title interest in, and interest in or to claims under any assets, properties, or rights or properties other than those expressly described in Section 2.1 above, which shall therefore not constitute part 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 Acquired Assets (collectively, the “Excluded Assets”), including the followingfollowing assets, properties or rights of Seller or any Affiliate or related entities of Seller:
(a) cash and cash equivalents;
(b) any names, logos, trademarks, trade names or service marks including any names, logos, trademarks, trade names or service marks (i) containing any of the “Deloitte,” “Touche” or “Tohmatsu” names, or any derivatives thereof, or (ii) used in the businesses of Seller or its Affiliates, or any other Intellectual Property Rights, in each case other than the Acquired Intellectual Property Rights which include the Transferred ▇▇▇▇;
(c) any and all Technology, other than the Acquired Technology;
(d) all (i) company seals, corporate minute books and stock records or similar corporate records of Seller and the Business Affiliates and (ii) Tax Returns;
(e) all Books and Records (other than the Acquired Books and Records) and a copy of all Acquired Books and Records;
(f) all Contracts, assets, properties or rights set forth on Schedule 2.2(f);
(g) all personal property and computer equipment other than the Acquired Tangible Assets;
(h) all Tax assets, including refunds due to Seller or any Business Affiliate, in respect of periods or portions thereof ending on or prior to the Closing Date;
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationleases to real property other than the Acquired Leases;
(iij) any and all Accounts Receivablebank accounts used by the Business;
(iiik) 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 of Seller and the Business Affiliates 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, recoveries thereunder 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 assert claims 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)such insurance recoveries;
(xivl) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion of assets related to any cell line of which an aliquot thereof is included in the Purchased Assets pursuant to Section 2.01(a)(xx)Employee Benefit Plan; and
(xvm) any real property or interest in real property other than all assets, properties and rights that are subject to the Transferred Real PropertyTransition Services Agreement.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(aSeller shall retain and not sell to Buyer, and Buyer will not purchase from Seller: (i) to any of the contrarySeller Retained Assets, 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, (ii) except for the Purchased Assets rights being granted to Buyer under the Information License, any of the Licensed Information (collectively, the “"Excluded Assets”"), including the followingwhich shall include, without limitation:
(i1) all cash of Seller’s inventory of Collectible Coins and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
Sports Memorabilia (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"Auction Businesses’ Inventory");
(v2) all Intellectual Property of Seller’s accounts, notes and other receivables and any other rights to payment, that arose, or may arise between the date hereof and the Closing, out of any of the operations of any of the Auction Businesses, including amounts payable by any insurers or under any manufacturer, supplier or vendor or consignor warranties, whether or not accrued and whether or not billed, and all of the proceeds thereof (collectively, the " Auction Business Accounts Receivable "), other than (Ai) the Transferred Intellectual PropertyAuction Advances which Buyer has approved pursuant to Section 2.8(7), and (Bii) the Additional Assigned Intellectual Propertycustomer accounts outstanding as of the Closing Date under the BaM customer portfolio program described in Schedule 2.7(8) hereto (the "CPP Accounts"), which are being acquired by Buyer pursuant to Section 2.7(8) hereof, subject to the rights of Buyer as set forth in Paragraph 2.8(7)(b) below;
(vi3) Seller’s cash on hand or in transit, bank deposits, and all of Seller’s cash equivalents and securities or other investments;
(4) all books, records, files, and other documents relating to any of the machinery, equipment, mechanical Seller Retained Businesses or any of the operations thereof or included as part of the Licensed Information;
(5) all office furniture and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(viequipment not acquired by Buyer pursuant to Section 2.1(11);
(vii6) all current Except for the rights being granted to Buyer under the Software License Agreement, the Proprietary Software; and prior insurance Contracts and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunder;
Seller’s web site assets (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 website assets identified in Section 2.01(a)(xviiiA of Schedule 2.1(6), and the Proprietary Software identified in Schedule 2.1(7) 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 conjunction with the manufacturing operation of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claimsAuction Businesses, 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 which are being transferred or future infringement or misappropriation of Intellectual Property, the right licensed 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)(xxBuyer); and
(xv7) any real property or interest all other assets of Seller not identified as Acquired Assets in real property other than the Transferred Real PropertySection 2.1 hereto.
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 “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 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 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 the contrarycontrary contained in this Agreement, no Designated Purchaser shall purchase or otherwise acquire any right, title all of the assets 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 and the Purchased other Asset Contributors other than the Contributed Assets (the “Excluded Assets”)) shall be retained and shall not be conveyed hereunder. Without limiting the foregoing, including the followingfollowing assets shall be excluded from the Contributed Assets:
(i) all cash and Cash Equivalentscash equivalents on hand or held by any bank or other third Person, including any other than cash and cash equivalents reflected on the Closing Date Balance Sheet or Cash Equivalents residing included in any collateral account securing any obligation or contingent obligationClosing Date Working Capital;
(ii) any all of the Asset Contributors’ right, title and interest in owned and leased real property and other interests in real property, including the Owned Real Property (subject to the terms of the Real Property Leases), and all Accounts Receivablesuch right, title and interest under each real property lease pursuant to which any of the Asset Contributors leases, subleases (as sub-landlord or sub-tenant) or otherwise occupies any such leased real property, including all improvements, fixtures and appurtenances thereto and rights in respect thereof;
(iii) any Contracts used in all Intellectual Property owned by the Triage Business that relate Asset Contributors other than the Transferred Trademarks, Transferred Domain Names and Transferred Patent Rights, including (A) all Trademarks and Domain Names to the division, corporate office, overhead extent such Trademarks and Domain Names incorporate the name “West” or back-office functions of Seller any variation thereof and its Affiliates(B) the Intellectual Property set forth in Schedule 2.2(b)(iii);
(iv) except to as set forth in Section 8.3, the extent included in Plans and other employee benefit plans, programs, arrangements and agreements (including any retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements) sponsored or maintained by the Purchased Assets under Section 2.01(a)(v) Asset Contributors or Section 2.01(a)(xviii)their respective ERISA Affiliates, and 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)trusts and other assets related thereto;
(v) all Intellectual Property other than (A) the Transferred Intellectual Property, policies of or agreements for insurance and (B) the Additional Assigned Intellectual Propertyinterests in insurance pools and programs;
(vi) all causes of action (including counterclaims) and defenses against third parties relating to any of the machineryExcluded Assets or the Excluded Liabilities as well as any books, equipment, mechanical records and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi)privileged information relating thereto;
(vii) all current books and prior insurance Contracts records of the Seller Group other than those book and all rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunderrecords included in the Contributed Assets;
(viii) all owned records and reports prepared or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used received by employees of Seller or any of its Affiliates other than to the Transferred Employeesextent in connection with the sale of the Business and the transactions contemplated hereby, including all analyses relating to the Business or Buyer so prepared or received;
(ix) except for the assets included pursuant to Section 2.2(a)(i), all other Information Technology Assets other than assets not related exclusively to, or exclusively used in, the Business, including those described in assets to be conveyed by a Company Group Member to another Affiliate of Seller pursuant to Section 2.01(a)(xviii) or Section 2.01(a)(xix)7.4;
(x) all assets of any Seller Plan or any similar benefit planCommingled Contracts, 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 which will be treated in accordance 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)(xx8.12(a); and
(xvxi) any real property or interest the assets set forth in real property other than the Transferred Real PropertySchedule 2.2(b)(xi).
Appears in 1 contract
Sources: Asset Contribution and Equity Purchase Agreement (West Corp)
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, rights or properties of ▇▇▇▇▇▇properties, Seller or their respective Affiliatesrights, regardless of kindcontracts and claims, description or location or wherever located, whether tangible or intangible, realreal or personal, personal or mixed, except for of the Asset Sellers not included in the definition of Purchased Assets (collectively, the “"Excluded Assets”") will not be sold, assigned, transferred or delivered to Purchaser or the Subsidiary Purchasers, including:
(a) All cash, cash equivalents, marketable securities and similar investments, bank accounts, lockboxes and deposits, and any rights or interests in, to, or with the cash management system of the Asset Sellers;
(b) All Excluded Receivables;
(c) All intercompany receivables owed to any Asset Seller by Seller or any Subsidiary of Seller (other than the Acquired Companies and except to the extent any such receivables are included on the Unaudited Balance Sheet);
(d) All rights of the Asset Sellers under any Contract other than the Contracts included in the Purchased Assets;
(e) All Intellectual Property that is not included in the Purchased Assets, including all rights of the Asset Sellers to use the "Newell Rubbermaid Inc." trade name or trademark, or any par▇ ▇▇ derivation thereof, together with all goodwill associated therewith, represented thereby or pertaining thereto;
(f) All real property, including any Closed Property;
(g) All assets used in connection with the centralized management functions provided by Seller;
(h) All refunds of or credits with respect to any Excluded Tax, as further described in SECTION 10.3(a), including plus any interest paid by the following:relevant taxing authority with respect to such refund or credit;
(i) all cash All Employee Benefit Plans and Cash Equivalentsany trusts, including any cash insurance arrangements or Cash Equivalents residing in any collateral account securing any obligation other assets held pursuant to, or contingent obligation;
(ii) any and all Accounts Receivable;
(iii) any Contracts used in set aside to fund the Triage Business that relate to the division, corporate office, overhead or back-office functions obligations of Seller and or its Affiliates;
(iv) except to the extent included in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii)Subsidiaries under, any Contracts pursuant to which rights such Employee Benefit Plans, other than as provided in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(ivSECTIONS 7.3 and 7.4(b);
(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)(vi);
(vii) all current and prior All insurance Contracts policies and all rights of any the Asset Sellers of every nature with respect thereto, including all and description under or arising out of such 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)policies; and
(xvk) any real property or interest in real property other than the Transferred Real PropertyThe assets listed on SCHEDULE 1.3(k).
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Newell Rubbermaid Inc)
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 Section 2.01(a) herein to the contrary, no Designated Purchaser the Purchased Assets shall purchase or otherwise acquire not include any right, title and interest in or to any of the following assets, properties and rights of Seller (collectively, the “Excluded Assets”):
(a) Cash, bank accounts, securities, or properties any other assets of Seller, except for assets associated with Country Stampede and the Country Stampede Intellectual Property;
(b) The logo, tradenames, trademarks, service marks, corporate names, and Internet domain names containing or consisting of the words JC Entertainment and not specifically relating to the Country Stampede Intellectual Property;
(c) All Contracts, leases, licenses and other agreements to which Seller is a party unless specifically assumed herein with regard to Purchased Assets;
(d) All inventories, hardware, supplies, work in process, and finished goods not relating to Purchased Assets;
(e) The financial records of Seller, except as expressly included herein pertaining to the Purchased Assets;
(f) All hardware, software, intellectual property, and other business property of Seller exclusively relating to JC Entertainment and not used exclusively in conjunction with the Purchased Assets, and any other property of Seller which is not utilized in connection with the Purchased Assets not specifically defined in Article 2, whether or not such property is reflected on Seller’s books and records;
(g) The organizational documents of the Seller, including the minute books, ownership ledgers, and other constituent records relating to the organization of the Seller;
(h) The name, logo, and any tradenames, trademarks, service marks, corporate names, and Internet domain names of any and all other assets of C▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Seller or their respective Affiliatesany entity in which C▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ is a member/shareholder/owner, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for that are not exclusively related to the Purchased Assets (the “Excluded Assets”), including the following:; and
(i) all cash and Cash EquivalentsPersonal property, including mementos, gifts, or the like given to any cash owner, officer, employee, or Cash Equivalents residing in agent of JC Entertainment relating to the Purchased Assets, or any collateral account securing any obligation or contingent obligation;artist who performed over the years.
(iij) any and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate not assigned to the divisionBuyer, corporate officewhich will be cancelled by Seller, 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 as set forth on Schedule 2.01(b)(xii8(c);
(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 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 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 Acquired Assets shall not include any of the following (collectively, the ³Excluded Assets´):
(a) the Purchase Price delivered to Sellers pursuant to this Agreement;
(b) all cash and cash equivalents, including checks, commercial paper, treasury bills, certificates of deposit and other bank deposits as of the Closing Date, in each case excluding any item described in Section 2.01(a2.1(ii)(m) and excluding any deposit amounts included in Pre-Paid Expenses;
(c) all Owned Real Property not listed or described on Schedule 2.1(d) and not otherwise comprising any portion of the Facilities or the Office Building (it being understood that it is the intention of Sellers to convey to Buyer all real property and interests in real property comprising any portion of the contraryFacilities and the Office Building);
(d) subject to Section 7.15, no Designated Purchaser shall purchase all oil extraction equipment described on
(e) all Trade Secrets;
(f) all capitalized leases;
(g) any shares of capital stock or otherwise acquire other equity interest of any right, title and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or their respective Affiliatesany of Sellers¶ Subsidiaries or any securities convertible into, regardless exchangeable or exercisable for shares of kindcapital stock or other equity interest of any Seller or any of Sellers¶ Subsidiaries; of Sellers;
(h) all minute books, description or location or whether tangible or intangiblestock ledgers, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), including the following:corporate seals and stock certificates
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationContract that is not an Assigned Contract;
(iij) any Lease that is not an Assigned Lease;
(k) any refunds of Taxes paid by Sellers with respect to a Pre-Closing Tax Period and not otherwise reimbursed by Buyer hereunder;
(l) all Accounts Receivable;
(iiim) any Contracts used in the Triage Business that relate all insurance policies and rights to the division, corporate office, overhead or back-office functions of Seller and its Affiliatesproceeds thereof;
(ivn) except all telephone, telex and telephone facsimile numbers and other directory listings, other than telephone, telex and facsimile numbers specific exclusively to the extent Facilities and included in the Purchased Acquired 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)(ivSection 2.1(n);
(vo) all Intellectual Property Permits and pending applications therefor 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)(vithose specified in Section 2.1(ii)(f);
(viip) all current any properties and prior insurance Contracts and all rights assets of any nature with respect theretothe Company or VeraSun Marketing, including all insurance proceeds received LLC, a Delaware limited liability company, not related exclusively to, used exclusively in or receivable thereunder;
(viii) all owned or leased desktop computersheld for use exclusively in the Business, 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 specifically identified as included in ³Acquired Assets´ in Section 2.01(a)(xviii) or Section 2.01(a)(xix2.1(ii);
(xq) 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 SellerExcluded Deposits;
(xir) shares of capital stock of Qteros (formerly SunEthanol) owned by Sellers (the ³Qteros Shares´); provided that, if Buyer so requests by notice to Sellers not later than ten (10) days prior to the Sale Hearing (the ³Qteros Option Notice´), the Qteros Shares shall, subject to Buyer paying the Qteros Asset Consideration at the Closing, be an Acquired Asset and shall be transferred to Buyer at the Closing, but only if and to the extent that the Qteros Shares are freely assignable and transferable at the Closing pursuant to any Contracts governing Sellers¶ rights with respect thereto and pursuant to applicable Legal Requirements; provided further that, in the event that (I) Buyer has timely delivered and not withdrawn the Qteros Option Notice and irrevocably agreed to pay the Qteros Asset Consideration to Sellers upon Sellers having the right to freely assign and transfer the Qteros Shares to Buyer and (II) the Qteros Shares are not freely assignable and transferable at the Closing, Sellers shall, in accordance with and subject to Section 2.6 and Section 2.9, use reasonable efforts in cooperating with Buyer to obtain the right to freely assign and transfer the Qteros Shares to Buyer as soon as possible after the Closing and, upon obtaining such right, Sellers shall assign and transfer the Qteros Shares to Buyer and Buyer shall pay to Sellers the Qteros Asset Consideration, provided further that, notwithstanding anything to the contrary in this Agreement, in connection with the transfer (including efforts to obtain the right to freely assign and transfer) of the Qteros Shares to Buyer, Buyer shall be responsible for all costs and expenses, and Sellers shall not be required to make any expenditure or incur any obligation on their own or on behalf of Buyer or Parent for which funds in the full amount of such expenditure or obligation are not provided to Sellers by Buyer in advance in cash;
(s) 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 PropertySection 8.9, 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)Avoidance Actions; and
(xvt) any real property rights, claims or interest in real property causes of action of Sellers under this Agreement or any other than the Transferred Real PropertyTransaction Document.
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Sources: Asset Purchase Agreement
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 anything in Section 2.01(a) 2.1, the Parties acknowledge and agree that Seller is not selling, conveying, transferring, delivering or assigning to the contraryBuyer any rights whatsoever to those Assets described below or specifically listed on Schedule 2.2 (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”), in each case, wherever located or by whomever possessed, and Buyer is not purchasing, taking delivery of or acquiring from or through Seller any rights whatsoever in or to the Excluded Assets from Seller, which shall include the following Assets:
(a) all Assets of Seller not relating to, used in, or necessary for the operation of the Biologics SBU or the development, manufacture, distribution, marketing or sale of the Products, other than as described in Sections 2.1(b), 2.1(c) and 2.1(e), including the following:Excluded Real Property and the Excluded Products;
(b) the Excluded Corporate Shared Services Assets;
(c) the Excluded Intellectual Property, other than the rights to use certain Seller Marks for the transition period pursuant to the provisions of Sections 6.7(a), 8.3 and 8.5;
(d) all cash, cash equivalents, accounts, securities, notes receivable and chattel paper of Seller or any of its Affiliates;
(e) all Accounts Receivable arising before the Effective Time (except Accounts Receivable, if any, for work in progress, partially billed products, or open purchase orders relating to the Products or the Biologics SBU);
(f) any refund or credit of Taxes attributable to any Excluded Tax Liability;
(g) all insurance policies of Seller;
(h) all rights, claims and credits of Seller or any of its Affiliates to the extent relating to any Excluded Asset or any Excluded Liability, including any such items arising under insurance policies and all guarantees, warranties, indemnities and similar rights in favor of Seller or any of its Affiliates to the extent relating to any Excluded Asset or any Excluded Liability;
(i) all cash rights of Seller or any of its Affiliates under this Agreement and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationthe Other Agreements;
(iij) all rights, claims and credits of Seller or any and all Accounts Receivableof its Affiliates arising under, in connection with, or relating to the PhosLo APA or the “PhosLo Business” as defined therein, or the Inhibitex Arbitration;
(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 Retained Information;
(ivl) except all tax attributes, tax credits and tax refunds of Seller, whether or not attributable to the extent included in ownership of the Purchased Assets; and
(m) (i) the Seller Shared Use Assets under not split or segregated pursuant to Section 2.01(a)(v) or Section 2.01(a)(xviii6.7(d), 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 Propertyii) to the extent related split or segregated pursuant 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)(xx6.7(d), including the remaining split or segregated portion of any cell line of which an aliquot thereof is included in Seller Shared Use Asset agreed by the Purchased Assets Parties to be owned or held by Seller after the Effective Time, and (iii) to the extent split or segregated pursuant to Section 2.01(a)(xx6.7(d); and
(xv) , the split or segregated portion of any real property Buyer Shared Use Asset agreed by the Parties to be owned or interest in real property other than held by Seller after the Transferred Real PropertyEffective Time.
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Excluded Assets. Notwithstanding anything in Section 2.01(a) 2.1 to the contrary, no Designated Purchaser Seller Parties will retain ownership of, and the Acquired Assets shall purchase or otherwise acquire any rightnot include, title and interest in or to any assetsthe following 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”):
(a) Any asset of Parent or LendingTree other than as listed in subsection (n) of Schedule 2.1;
(b) Except as provided in Sections 2.1(a), 2.1(f) and 2.1(j), all cash, cash equivalents, short term investments and accounts receivable of Sellers or the Subsidiaries;
(c) All amounts held by Sellers in impound or escrow accounts in respect of any Mortgage Loans that are not transferred to Buyer;
(d) All bank accounts of each Seller;
(e) All Mortgage Loans (other than those portfolio loans listed in subsection (i) of Schedule 2.1);
(f) Sellers’ warehouse lines of credit, Investor Commitments, hedging arrangements (including dealer agreements, but not including the following:hedging instruments described in Section 2.1(a)) and Contracts related to the foregoing;
(g) All Contracts of Seller Parties and their Affiliates other than Assumed Contracts and Assumed Office Leases;
(h) All Benefit Plans of Seller Parties and their Affiliates;
(i) all cash Any assets which are “plan assets” (within the meaning of ERISA) of any Benefit Plan of any Seller Party or any of their Affiliates 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 insurance policy to the division, corporate office, overhead extent such policy provides benefits under any Benefit Plan of any Seller Party or back-office functions any of Seller and its their Affiliates;
(ivj) except to the extent included in the Purchased Assets under Section 2.01(a)(v) All personnel records and files maintained by Seller Parties 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 their Affiliates 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 to employees of Seller or its Affiliates other than the Transferred Hired Employees;
(ixk) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix)All insurance policies of Sellers;
(xl) all assets All Licenses of any Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate Sellers;
(m) The Organizational Documents and Tax Returns of each Seller;
(xin) All attorney-client privileged materials to the extent about the Transactions and subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Preattorney-Closing Tax Periodclient privilege;
(xiio) Sellers’ rights under any Transaction Document;
(p) All real property owned by Sellers or the Registrations used in the manufacturing of the Products Subsidiaries; and
(q) The other assets set forth on Schedule 2.01(b)(xii2.2(q);
(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 The Purchased Assets shall purchase or otherwise acquire any right, title and interest in or to not include any assets, properties, or rights of Seller other than the Purchased Assets (collectively, the “Excluded Assets”). The Excluded Assets shall include, but are not limited to, the following other such assets:
(a) Contracts, including Intellectual Property Licenses, that are not Assigned Contracts (the “Excluded Contracts”);
(b) any furniture, fixtures, equipment, tools, vehicles, office equipment, supplies, computers, telephones and other tangible personal property;
(c) any interest in any real property owned or properties leased by the Seller;
(d) any inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories;
(e) the seals, organizational documents, minute books, ownership books and documents, Tax Returns, books of account or other records having to do with the organization of Seller;
(f) any Benefit Plans and assets attributable thereto;
(g) cash and cash equivalents;
(h) the claims, demands, suits, causes of action or enforcement rights of Seller as against third parties arising exclusively prior to the Closing (“Excluded Claims”), including those listed in the Disclosure Schedules in Section 2.02(h), and any settlement, recoveries, judgments, benefits, awards, damages, interest, costs, or other direct or indirect recovery arising out of or related to Excluded Claims;
(i) the confidential or proprietary communications of Seller or its respective Affiliates regarding the transactions contemplated under this Agreement and communications of Seller or its Affiliates that are subject to attorney-client privilege, in each case whether in tangible, electronic or other form; and
(j) the rights which accrue or will accrue to Seller under the Transaction Documents;
(k) the equity or any assets of any Affiliate of Seller, including but not limited to the equity and assets of reTech and R▇▇▇▇▇ Partnership, LLC (“R▇▇▇▇▇ Partnership”);
(l) Stockholders’ personal email, reTech email, R▇▇▇▇▇ Partnership email, J▇▇ ▇▇▇▇▇▇▇'▇ email, 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 Business, D▇▇▇▇▇ ▇'▇▇▇▇▇'▇ email, other than those described in Section 2.01(a)(xx)related to the Business, including J▇▇▇ ▇▇▇▇▇▇▇'▇ email, other than those related to the remaining portion of any cell line of which an aliquot thereof is included in Business, and the Purchased Assets pursuant to Section 2.01(a)(xx)domain “r▇▇▇▇▇▇.▇▇▇”; and
(xvm) Any right of indemnification of Seller by any real property or interest in real property other than the Transferred Real PropertyFranchisee under any Franchise Agreement.
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 It is expressly understood and agreed that the Assets shall not include the following (each, an "Excluded Asset"):
(l) Except to the extent expressly transferred pursuant to the provisions of Sections 1.2(a) through (k), 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 Seller Transition Services Agreement, are not necessary to conduct the Compression Services Business as currently conducted;
(m) The capital stock and other equity interests of all direct or indirect subsidiaries and affiliates of Seller other than the Transferred Subsidiaries;
(n) Cash and cash equivalents or similar type investments, bank accounts, certificates of deposit, Treasury bills and other marketable securities of the Asset Sellers;
(o) All real property and leasehold interests in real property of the Asset Sellers other than the Facilities and the Equipment;
(p) Any refunds or credits with respect to any Taxes (as defined in Section 2.01(a2.12) to paid or incurred by the contraryAsset Sellers (plus any related interest received from the relevant Taxing Authority) (as defined in Section 2.12);
(q) Any Intellectual Property of the Asset Sellers (other than the Intellectual Property expressly set forth, no Designated Purchaser shall purchase or otherwise acquire any summarized and/or described in Section 1.2(a) hereof);
(r) All 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) 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 Compression Services 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 Compression Services Business and (ii) the Excluded Assets and Excluded Liabilities;
(viiis) 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 All rights with respect to Taxes intercompany receivables, notes or loans between any of the Transferred Subsidiaries, on the one hand, and Seller and its other subsidiaries (excluding Transferred Subsidiaries) and affiliates, on the other hand, except for trade payables or receivables relating to any Pre-Closing Tax Period;
(xii) the Registrations used provision of goods and services to or by the Compression Services Business in the manufacturing ordinary course of business of the Products set forth on Schedule 2.01(b)(xii);
Compression Services Business consistent with past practice and custom (xiii) all claims, counterclaims, causes "Ordinary Course 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)(xxBusiness"); and
(xvt) any real property or interest The rights referred to in real property other than Section 1.3(i) of the Transferred Real PropertyDisclosure Schedule.
Appears in 1 contract
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 14 ______________________________________________________________________________ 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 Seller's Agreements; 15 ______________________________________________________________________________
(k) All insurance policies relating to the extent included in ownership, lease, maintenance or operation of 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)Assets;
(vl) all Intellectual Property All other than (A) assets and properties owned or leased by Seller or its successors, assigns and Representatives which are not used in the Transferred Intellectual Property, and (B) operation of the Additional Assigned Intellectual PropertyJointly Owned Stations;
(vim) The right, title and interest of Seller and its successors, assigns and Representatives under this Agreement and 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);Additional Agreements; and
(viin) The right, title and interest of Seller and its successors, assigns and Representatives in, to and under 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 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
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 mark 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, togethe▇ ▇▇th 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
Excluded Assets. Notwithstanding anything in Section 2.01(a) herein to the contrary, no Designated Purchaser shall purchase the Acquired Assets with respect to any Acquired Store or otherwise acquire shall not include any rightof the following (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) any Seller’s rights under this Agreement and the other Transaction Documents;
(b) except as otherwise expressly included as Acquired Assets, all cash and cash equivalents, including checks, commercial paper, treasury bills, certificates of deposit and other bank deposits, securities, securities entitlements, instruments and other investments of Sellers and all bank accounts and securities accounts;
(c) (i) all documents prepared in connection with this Agreement or the transactions contemplated hereby or thereby, or Primarily Relating to the Bankruptcy Case, all minute books, corporate records (such as stock registers), including income Tax Returns, and organizational documents of Sellers and the following:Retained Subsidiaries and (ii) copies of all documents relating (but not Primarily Relating) to the Bankruptcy Case;
(d) any Contract that is not an Assigned Agreement;
(e) any interest in or right to any refund, rebate or credit of Excluded Taxes;
(f) all Claims and Proceedings of Sellers (other than Claims described in Section 3.1(m));
(g) the Excluded IP/IT;
(h) all shares of capital stock or other equity interests of any Seller or Retained Subsidiary or securities convertible into or exchangeable or exercisable for shares of capital stock or other equity interests of any Seller, Retained Subsidiary or any other Person;
(i) all cash Excluded Inventory, all Excluded Equipment and Cash Equivalentsall Excluded Improvements;
(j) all Employee Plans, including any cash assets, trust agreements or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationother funding Contracts related thereto;
(iik) any and all Accounts Receivablethe Austin Excluded Assets;
(iiil) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliatesaccounts receivable;
(ivm) 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)Equipment located at Sellers’ corporate headquarters;
(vn) 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)IP Licenses; and
(xvo) all assets, properties and rights of any real property or interest in real property Sellers other than the Transferred Real PropertyAcquired Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement
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 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 Cash Equivalents, including on Premises
(b) any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationbank accounts of Sellers;
(iic) any the Purchase Price and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate Sellers’ rights thereto under this Agreement, subject to the division, corporate office, overhead or back-office functions offset provisions set forth in Section 2.1 of Seller and its Affiliates;
(iv) except this Agreement with respect 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 Purchase Price of Unencumbered Property;
(vid) 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)any Excluded Contracts;
(viie) all current and prior insurance Contracts and all rights of any nature Claims including the AMC Claims, other than those Claims with respect thereto, including all insurance proceeds received to or receivable thereunderin connection with any Purchased Contract or Purchased Asset;
(viiif) (I) a copy of any books and records relating to any pre-Closing period, including, without limitation, (i) Tax Returns, financial statements, and corporate or other Entity filings, (ii) minute books, stock ledgers, and stock certificates of any Subsidiaries of Sellers, and (II) all owned or leased desktop computers, laptops, tablets, mobile phones originals and similar assets primarily used copies of documents relating to proposals to acquire the Business by employees of Seller or its Affiliates Persons other than the Transferred EmployeesPurchaser;
(ixg) 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 the Sellers;
(xh) all assets of any Section 401(k) or other Seller Plan or benefit plan (including any similar benefit plan, program or arrangement that is maintained or contributed Company Benefit Plan);
(i) any item expressly excluded pursuant to the provisions of Section 1.1 above;
(j) all intercompany claims by any Seller against any other Seller or any Subsidiary or other Affiliate of any Seller;
(xik) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Periodall Avoidance Actions;
(xiil) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all claimsTax credits, counterclaims, causes of action, choses in action, rights of recovery, prepayments 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) refunds but only to the extent related attributable 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 Taxes; and
(xvm) any real property personnel and employment records for current or interest former employees and individual independent contractors of the Business, except as provided for in real property other than the Transferred Real PropertySection 13.9.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) herein to the contrary, no Designated from and after the Closing, Seller and the other Seller Persons shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser and its designee hereunder, and the Transferred Assets shall purchase not include (x) any rights, properties or otherwise acquire any rightassets (tangible or intangible and wherever located) which are not primarily related to, title and interest primarily used in or primarily held for use in the conduct of the Business (other than with respect to any the assets, properties and rights described in clause (y), which shall constitute Excluded Assets to the extent set forth therein) and (y) the following assets, properties and rights (tangible or intangible and wherever located) (the assets, properties and rights described in clauses (x) and (y) of this Section 2.3, collectively, the “Excluded Assets”):
(a) All Intellectual Property of each of Seller and its Affiliates (other than the Acquired Group Companies), other than the Transferred IP;
(i) All attorney-client privilege and attorney work-product protection of Seller and the other Seller Persons or associated with the Business as a result of legal counsel representing Seller, the other Seller Persons or the Business in connection with the transactions contemplated by this Agreement or any of the Ancillary Agreements, (ii) all documents subject to the attorney-client privilege or work-product protection described in clause (i) of this Section 2.3(b) and (iii) all documents maintained by Seller and the other Seller Persons related with the transactions contemplated by this Agreement or any of the Ancillary Agreements;
(c) Any Excluded Contract;
(d) Any Excluded Tax Asset;
(e) Subject to Section 5.7, all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by any Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except Person for the Purchased performance of a Transferred Contract;
(f) All Cash on Hand of Seller and the other Seller Persons (other than, for the avoidance of doubt, the Acquired Group Companies);
(g) All claims, causes of action and rights against third parties to the extent arising out of or relating to any of the Excluded Assets or Excluded Liabilities, whether arising by way of counterclaim or otherwise;
(h) All books and records (including records, analyses and correspondence) other than the “Excluded Assets”), including the following:Transferred Books and Records;
(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 All Seller Benefit Plans 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 assets 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 Employeesrelated thereto;
(ixj) all All loans owing to Seller or the other Information Technology Assets Seller Persons by each Business Employee who does not become a Transferred Employee;
(k) All employee and personnel records of Seller or the other Seller Persons relating to employees of Seller or the other Seller Persons (other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xixTransferred Employees to the extent permitted under applicable Law);
(xl) all assets of any All rights or claims which accrue or will accrue to Seller Plan or any similar benefit plan, program other Seller Person under this Agreement or arrangement that is maintained or contributed to by any Seller or Affiliate of Sellerthe Ancillary Agreements;
(xim) subject Subject to Section 2.3(f) and Section 5.10, all Seller Insurance Policies (including, for the provisions avoidance of Article VIIIdoubt, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xiiall Excluded Insurance Policies) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) and all claims, counterclaims, causes of action, choses in action, rights of recovery, to make claims and rights to proceeds in respect 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);such Seller Insurance Policies.
(xivn) all cells lines other than those All assets, properties and rights 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.on Schedule V.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) Purchasers acknowledge and agree that they are not acquiring any rights, titles or interests in, to or under any of the contraryfollowing assets (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”), including the following:"):
(i) all cash and any 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 losses, loss carryforwards and rights to the divisionreceive refunds, corporate office, overhead or back-office functions credits and loss carryforwards with respect to any and all Taxes of Seller and or any of its AffiliatesAffiliates that constitute Retained Liabilities pursuant to Section 2.5(ix);
(iv) except (A) subject to Section 2.1(a)(v), the corporate books and records of Seller and its Affiliates to the extent included not related solely to the Purchased Assets, including those portions of the Tax Returns and other corporate books and records that do not relate solely to the Purchased Assets, (B) all personnel records, (C) any attorney work product, attorney-client communications and other items protected by attorney-client privilege and (D) any documents that were received from third parties in connection with their proposed acquisition of the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii), the Products or that were prepared by Seller or any Contracts pursuant to which rights of its Affiliates in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Schedule 2.01(b)(iv)connection therewith;
(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 any current and prior insurance Contracts policies and all rights of any nature with respect thereto, including all insurance proceeds received recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(vi) the Seller Names (other than as set forth in Section 2.1(a)(ii)) and the Excluded Trademarks (including any Seller Names relating to the combination of the word "Ortho" with any name other than "Dermatologics");
(vii) any real estate owned or receivable thereunderleased by Seller or any of its Affiliates;
(viii) all owned or leased desktop computersany equipment whatsoever;
(ix) any rights, laptops, tablets, mobile phones claims and similar assets primarily used by employees credits of Seller or any of its Affiliates relating to any Excluded Asset or any Retained Liability, including any guarantees, warranties, indemnities and similar rights in favor of Seller or any of its Affiliates relating to any Excluded Asset or any Retained Liability;
(x) any Seller Compensation and Benefit Plan, any assets in respect of any Seller Compensation and Benefit Plan and any other compensation and benefit plans sponsored by Seller, any Divesting Entity or any of their Affiliates in respect of Transferred Employees;
(xi) the equity interests of any Person;
(xii) the Damaged Inventory;
(xiii) any claims or rights relating to discontinued products that are not Products;
(xiv) all employees of Seller, any Divesting Entity or any of their 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 other assets (including intellectual property, software and information technology systems), properties or interest in real property rights of Seller or any of its Affiliates other than the Transferred Real PropertyPurchased Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (Valeant Pharmaceuticals International, 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 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 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 the contrarycontrary contained herein, no Designated Purchaser the following are specifically excluded from the Transactions and shall purchase or otherwise acquire any right, title be excluded from and interest in or to any assets, rights or properties not deemed part 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 Acquired Assets (the “Excluded Assets”), including the following:):
(ia) all cash Sellers’ financial books and Cash Equivalentsrecords and organizational/governance documents, including minute books and other books and records relating to the maintenance and operation of Sellers as legal entities and not related to the operation of the White Oak Business or the Facilities, and any cash books and records relating to any Excluded Assets or Cash Equivalents residing Retained Liabilities (“Excluded Books and Records”); provided, however, that Purchaser shall be entitled to access to, and a right to copy, any of the Excluded Books and Records at Purchaser’s expense upon Purchaser’s reasonable request or to the extent required by any Laws applicable to Purchaser or used in or related to any collateral account securing any obligation or contingent obligationof the Acquired Assets, subject to the confidentiality obligations hereunder;
(iib) any all unrestricted bank accounts, unrestricted cash, unrestricted cash equivalents, unrestricted equity investments, securities, and inter-company accounts of Sellers;
(c) all Accounts Receivable;
(iiid) any Contracts used other current assets (other than inventory) not otherwise specified in this Section 1.02 that are customarily reflected on the Triage Business that relate to balance sheets of Sellers in accordance with Sellers’ historic accounting policies and practices, and which are of 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 type listed on Schedule 2.01(b)(iv1.02(d);
(ve) all Intellectual Property other than (A) tangible property and assets not owned by any Seller located at the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual PropertyWaxhaw Facility;
(vif) all property and assets of residents and patients located in the machineryFacilities;
(g) all tangible personal property and assets of the Owners and any officers or directors of Sellers that are unrelated to the ownership or operation of the Facilities, equipment, mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described as set forth on Schedule 2.01(b)(vi1.02(g);
(viih) all current and prior insurance Contracts and all rights of any nature with respect theretopersonal property in which Sellers have no interest, including all insurance proceeds received personal property owned by (i) the supplier, lessor, vendor, licensor or receivable thereunderother party (other than any Seller with respect to the foregoing) under any Contracts or otherwise, (ii) any individuals employed at the Facilities, the Pharmacy Location or the WO Headquarters (collectively, “Employees”), (iii) any residents, patients, guests, licensees or invitees of any Facility or (iv) the landlord counter-party to the Waxhaw Facility lease and the WO Headquarters Lease;
(viiii) all owned or leased desktop computersrights in connection with and assets of any Seller Plans, laptops, tablets, mobile phones and similar assets primarily used by employees of except for the 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)(xixPlans set forth on Schedule 1.01(w);
(xj) subject to Section 7.12 hereof, all assets of Sellers’ rights to receive funds, including all rights to receive funds swept from any Seller Plan lockbox accounts and deposit accounts, that are expressly attributable to resident or patient receivables for services performed prior to the Effective Time, including, without limitation, those funds received pursuant to the Medicare and Medicaid Programs in any similar benefit planstate, program whether fee-for-service or arrangement that is maintained or contributed to administered by any Seller or Affiliate of Sellera managed care organization;
(xik) subject the rights which accrue or will accrue to Sellers 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 PeriodTransaction Documents;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiiil) all claims, counterclaims, causes of action, choses in actionrefunds, rights of recovery, and rights of set-off and rights 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 recoupment with respect to any Intellectual Property) the operation of the White Oak Business prior to the extent related Effective Time, provided that they do not relate to Purchaser’s or its Affiliate designees’ ownership and/or use of the items described in this Section 2.01(b) Acquired 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), including responsibility for the remaining portion of any cell line of which an aliquot thereof is included in Assumed Liabilities on or after the Purchased Assets pursuant to Section 2.01(a)(xx)Effective Time; and
(xvm) any real property or interest in real property other than the Transferred Real Propertyassets set forth on Schedule 1.02(m).
Appears in 1 contract
Sources: Purchase and Sale Agreement (National Healthcare Corp)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary herein, no Designated Purchaser shall purchase the following assets and properties of, or otherwise acquire any rightin the possession of, 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 Asset Sellers (the “Excluded Assets”), including ) shall be retained by the followingAsset Sellers and shall be excluded from the Transferred Assets notwithstanding any other provision of this Agreement:
(i) all cash and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationequivalents;
(ii) all rights to the Seller Name and Marks, together with any and all Accounts ReceivableContracts granting rights to use the same;
(iii) any Contracts used in the Triage Business that relate to the division, corporate office, overhead all loans or back-office functions of advances (including trade accounts receivable/payable) between an Asset Seller and its Affiliatesa Transferred Entity;
(iv) except all Tax Returns, and all refunds of, or credits relating to, any Tax (A) of an Asset Seller for periods ending on or prior to the extent included in the Purchased Assets Closing Date, or (B) for which Seller is responsible 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)Article IX;
(v) except as set forth in Section 2.02(a)(xiii) and for Buyer’s rights expressly provided under Section 7.03, 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 Insurance Policies and all rights of any nature with respect theretoto any Insurance Policy, including any recoveries thereunder and any rights to assert claims seeking any such recoveries;
(vi) all insurance proceeds received causes of action (including counterclaims) and defenses against third parties to the extent relating to any of the Excluded Assets or receivable thereunderthe Excluded Liabilities, as well as any books, records and privileged information relating thereto;
(vii) all Seller Intellectual Property and Seller Technology, including, any Intellectual Property or Technology listed in Section 4.11(e)(ii) of the Disclosure Schedule;
(viii) the Employee Plans and all owned or leased desktop computersassets, laptops, tablets, mobile phones rights and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employeesproperties expressly excluded pursuant to Article VIII;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) nontransferable or Section 2.01(a)(xix)nonassignable Permits, including nontransferable Environmental Permits and any Permits that are not Related to the Business;
(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 Sellerrights under the Transaction Agreements;
(xi) subject all assets consisting of or related to the provisions of Article VIIIShared Services, any right including those related to any refund or credit with respect to Taxes relating to any Pre-Closing Tax PeriodIT systems, servers and systems hardware and networking and communications assets;
(xii) the Registrations used in the manufacturing all personnel and employment records for employees and former employees of the Products set forth on Schedule 2.01(b)(xii)Asset Sellers who are not Transferred Employees;
(xiii) all claimsexcept as expressly set forth in Section 2.02(a), counterclaimsany other assets, causes of action, choses in actionproperties, rights of recovery, and rights of set-off of any kind Contracts (including all damages Shared Contracts, subject to the rights and payments for pastobligations set forth in Section 6.08) of the Asset Sellers to the extent not Related to the Business;
(xiv) any other accounts and other receivables to the extent not related to the Business;
(xv) (A) all corporate minute books and stock records (and other similar corporate records) of the Asset Sellers, present (B) any books and records to the extent relating to the Excluded Assets, or future infringement (C) any books and records or misappropriation other materials of Intellectual Propertyor in the possession of the Asset Sellers that (1) any of the Asset Sellers are required by applicable Law to retain (copies of which, 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)(xxBusiness and as permitted by applicable Law, will be made available to Buyer upon Buyer’s reasonable request), (2) are Tax Returns of the Asset Sellers or (3) any of the Asset Sellers are prohibited by applicable Law from delivering to Buyer, including any books and records, reports, information or other materials that disclose in any manner the remaining portion contents of any cell line other books and records, reports, information or other materials that any of which an aliquot thereof the Asset Sellers is included in prohibited by applicable Law from delivering to Buyer (copies of which, to the Purchased Assets pursuant extent related to Section 2.01(a)(xxthe Business and as permitted by applicable Law, will be made available to Buyer upon Buyer’s reasonable request); and
(xvxvi) (A) all records and reports prepared or received by Seller or any real property of its Affiliates in connection with the sale of the Business or the Transactions, including all analyses relating to the Business or Buyer so prepared or received, (B) subject to the rights and obligations set forth in Section 6.03(c), all confidentiality agreements with prospective purchasers of the Business or any portion thereof, and all bids and expressions of interest received from third parties with respect thereto and (C) all privileged communications described in real property other than Section 13.19 and all privileged materials, documents and records to the Transferred Real Propertyextent not related to the Business.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (nVent Electric PLC)
Excluded Assets. Notwithstanding anything in the provisions of Section 2.01(a2.2 hereof, the Acquired Assets do not include the following (the "Excluded Assets"):
(a) to the contrary, no Designated Purchaser shall purchase or otherwise acquire any Cash;
(b) All of Sellers' right, title and interest in to properties and assets other than the properties and assets conveyed pursuant to Section 2.2;
(c) All claims or rights of Sellers, if any, against third parties based on facts or circumstances occurring prior to the Closing Date other than the accounts receivable of the Business transferred pursuant to Section 2.2(h);
(d) All insurance policies of Sellers and rights thereunder, including rights to any assetscancellation value on the Closing Date;
(e) Rights of the Sellers to the refund of any federal or state income tax, rights ad valorem real estate or properties property tax, and any other similar tax that was paid prior to the Closing Date, subject to Section 2.6(c), and the benefit, if any, of net operating loss carry-forwards or carry-backs of the Sellers;
(f) All assets related to any pension, profit sharing, stock bonus, stock option, thrift or other retirement plan, medical, hospitalization, dental, life, disability, vacation or other insurance or benefit plan, employee stock ownership plan, deferred compensation, stock ownership, stock purchase, bonus, benefit or other incentive plan, severance plan or other similar plan relating to the Sellers or their employees;
(g) All marks or other intellectual property of the Sellers other than those marks described on Schedule 4.8 but including, without limitation, any and all trademarks or service marks, trade names, slogans or other like property relating to or including the names "Piccadilly Cafeterias," "Piccadilly Restaurants," "Piccadilly," "▇▇▇▇▇▇, 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 ▇▇ Restaurants," "▇▇▇▇▇▇▇▇" and all Accounts Receivable;
(iii) any Contracts used in the Triage Business that relate to the divisionderivations, corporate office, overhead or back-office functions of Seller variations 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)abbreviations thereof; 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 (Piccadilly Cafeterias 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 ReceivableReceivable (other than Accounts Receivable of the Purchased Entities);
(c) the equity, 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 (the “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 Restructuring Steps Plan;
(d) the assets owned by the Purchased Entities as of the date of this Agreement and to be transferred to Seller, Rexam or one or more of their respective Affiliates that is not a Purchased Entity in accordance with the Restructuring Steps Plan;
(e) (i) any and all Tax refunds and prepayments of Excluded Taxes and (ii) any net operating losses or other tax attributes of Seller or its Affiliates related to any Pre- Closing Tax Periods;
(f) 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 Business Real Property;
(h) any and all Business Permits and Environmental Permits except as set forth in 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 4.8, 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 used in described under the Triage foregoing clauses (i) – (iv) being the “Excluded Business Contracts”) and (v) any other Contract that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliatesis not a Specified Business Contract;
(ivo) except to any and all Seller and Rexam Marks, without limiting the extent included license set forth 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)4.9;
(vp) any and all Intellectual Property other than (A) the Transferred Intellectual Property, without limiting the licenses set forth in Section 4.9 and (B) the Additional Assigned Intellectual PropertySection 4.10;
(viq) 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 machineryClosing Date, equipmentwhether arising by way of counterclaim or otherwise, mechanical 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 spare parts(2) arising on or after the Closing Date, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(viother than as set forth in Section 1.1(b)(v);
(viir) all current and prior insurance Contracts any and all rights of any nature with respect theretoguaranties, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computerswarranties, laptops, tablets, mobile phones indemnities and similar assets primarily used by employees rights (1) in respect of Seller the Business or its Affiliates a Purchased Asset (other than any of the Transferred Employees;
foregoing held by the Purchased Entities) for the period prior to the Closing Date and (ix2) all other Information Technology Assets arising on or after the Closing Date, other than those described as set forth in Section 2.01(a)(xviii) or Section 2.01(a)(xix1.1(b)(viii);
(xs) 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 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;
(xit) subject the corporate charter, qualification to the provisions of Article VIIIconduct business as a foreign corporation, any right to any refund or credit arrangements with respect to Taxes registered agents relating to foreign qualifications, taxpayer and other identification numbers, corporate seal, minute books, stock transfer books and blank stock certificates for any Pre-Closing Tax Periodentity other than a Purchased Entity;
(xiiu) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
any intercompany receivables between (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 Seller Entity or future infringement or misappropriation of Intellectual Property, the right to use and recover for past infringements or misappropriations of Intellectual Property, Rexam Entity and any of their respective Affiliates, or between any such Affiliate and all corresponding rights that have been, now any other such Affiliate or hereafter may be secured throughout the world with respect to (ii) any Intellectual Property) to the extent related to the items described in this Section 2.01(b) Purchased Entity and any Affiliate of a Seller Entity 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)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 1 contract
Sources: Equity and Asset Purchase Agreement
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.01(a1.1, the parties expressly understand and agree that the Purchased Assets shall not include, and neither Seller nor any of the Selling Subsidiaries is hereunder selling, assigning, transferring or conveying to 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 Seller or any Subsidiary;
(b) with the exception of direct roll-overs as provided for in Section 10.2(a), any assets under any Seller Employee Benefit Plan which is not an Assumed Benefit Plan, including without limitation, 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 and any data and records (or copies thereof) required to administer the benefits of Business Employees under any such Seller Employee Benefit Plan;
(c) any and all insurance policies, binders and claims and rights thereunder and the proceeds thereof and all prepaid insurance premiums;
(d) subject to Section 7.6, the Intellectual Property and those Intellectual Property Contracts listed on Schedule 1.2(d) (the “Excluded Intellectual Property”);
(e) all tangible personal property disposed of or consumed prior to Closing Date in the ordinary course of business as permitted by this Agreement;
(f) the assets, Real Property Leases and other Contracts of the Seller and Selling Subsidiaries listed on Schedule 1.2(f), as the same may be amended by Purchaser prior to the contraryClosing pursuant to Section 6.7;
(g) all Contracts of Seller or any of its Affiliates (other than the Assumed Collective Bargaining Agreements and the Assumed Benefit Plans and except as provided in Section 10.4) with any of the Transferred Employees, no Designated Purchaser shall purchase any other Business Employees, or otherwise acquire any rightother current or former employee or agent of the Seller or any of its Affiliates, title including the Retention Agreements;
(h) subject to Section 10.6, any books, records and interest in other materials that Seller or any of its Subsidiaries is required by Law to any assetsretain, rights or properties of all Tax Returns and related work papers and, subject to Section 7.6, all “D▇▇▇▇▇▇” marked sales and promotional materials and brochures;
(i) all claims, defenses, causes of action, choses in action or claims of any kind relating to either Excluded Assets or Excluded Liabilities;
(j) all assets, business lines, properties, rights, Contracts and claims of Seller or their respective Affiliatesany Subsidiary not Related to the Business, regardless of kindwherever located, description or location or whether tangible or intangible, real, personal or mixed, except for including without limitation all assets, business lines, properties, rights, Contracts and claims of Seller or any Subsidiary related to the Purchased Assets business of Seller’s Hose and Tubing Group as set forth on Schedule 1.2(j) (the “Excluded AssetsHose and Tubing Business”), 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;
(iik) all assets associated with facilities Related to the Business which have ceased operations prior to the date hereof;
(l) all refunds, credits, prepayments or deferrals of or against any Taxes;
(m) all intercompany receivables, loans and investments between or among Seller, or its Subsidiaries;
(n) all Contracts of the Seller and the Selling Subsidiaries not listed or referenced on Schedule 1.1(e) or Schedule 1.1(f).
(o) 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)(iv1.2(o);
(vp) any and all Intellectual Property avoidance or other than causes of action arising under Sections 510, 544 through 550 and 553 of the Bankruptcy Code or under similar state laws (A) collectively, the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;“Bankruptcy Avoidance Actions”); 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);
(xiiiq) 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)(xvirecoupment listed on Schedule 1.2(q);
(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 (Dana Corp)
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) 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 contained in Section 2.01(a) this Agreement to the contrary, no Designated Purchaser shall purchase or otherwise acquire any right, title and interest in or to any the following assets, properties and rights will not be included in the Adaptive Assets (the "Excluded Assets"):
(a) Adaptive's equity interests or properties investments in third parties, including its wholly-owned subsidiaries, Adaptive Broadband Foreign Sales Corporation, a Barbados, West Indies corporation and ABL (together with ABCL, collectively, the "Adaptive Subsidiaries"), but excluding CBL, Fuzion and ABCL;
(b) All avoidance actions against entities other than Purchaser, including under Sections 542-544 and 547-551 of ▇▇▇▇▇▇the Bankruptcy Code and any amounts or other property received or receivable in any such actions;
(c) All executory contracts and unexpired leases of Adaptive not being assumed and assigned to Purchaser;
(d) All accounts, Seller deposit accounts, security deposits, cash, investment securities or their respective Affiliatesother cash equivalents held by Adaptive, regardless the Adaptive Subsidiaries or third parties on behalf of kindAdaptive or the Adaptive Subsidiaries or in which Adaptive or the Adaptive Subsidiaries claim an interest, description including any and all amounts held on behalf of deferred compensation or location or whether tangible or intangible, real, personal or mixed, similar plans (except for the Purchased Pre-Paid Deposits listed in Section 1.1(i) hereof);
(e) All intercompany receivables and intercompany claims between Adaptive and any of the Adaptive Subsidiaries and amongst any of the Adaptive Subsidiaries;
(f) All insurance policies, insurance claims or insurance proceeds;
(g) All attorney-client privileged materials; files of employees; and other books and records, correspondence, files and computer programs and data not directly related to the Adaptive Assets (the “Excluded Assets”), including the following:ABL Assets) being sold to Purchaser;
(h) All claims against Adaptive's and the Adaptive Subsidiaries' officers and directors including claims under directors' and officers' liability insurance;
(i) all cash All tort claims against third parties, except those directly relating to (i) the Adaptive Accounts Receivable, or (ii) the Adaptive Intellectual Property and Cash Equivalents, including the ABL Intellectual Property such as any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationclaims of infringement of the Adaptive Intellectual Property and the ABL Intellectual Property;
(j) All contract claims against third parties (except those claims relating to (i) the Adaptive Accounts Receivable or (ii) any and all Accounts Receivablethe Adaptive Intellectual Property or the ABL Intellectual Property);
(iiik) any Contracts used All office supplies, equipment, furniture, fixtures, leasehold improvements, electronic and computer equipment required by Adaptive's employees in the Triage Business that relate principal U.S. office of Adaptive to continue to complete the division, corporate office, overhead or back-office functions of Seller and its AffiliatesChapter 11 process;
(ivl) Such other assets as Purchaser shall expressly elect not to acquire, which such election must be made prior to the Closing Date;
(m) All license fees and prepaid amounts collected as of the Closing Date for goods, services and the Adaptive Intellectual Property on the Assumed Contracts (as defined in Section 1.1(d) hereto);
(n) All tax refunds or reductions, net operating losses, letter of credit rights and payment intangibles (except to the extent included in the Purchased Assets under Section 2.01(a)(v1.1(m) 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)(ivhereto);
(vo) all Intellectual Property other than (A) All intellectual property licenses of Adaptive or ABL to the Transferred Intellectual Property, and (B) extent determined by the Additional Assigned Intellectual PropertyCourt that such licenses are nontransferable;
(vip) All "employee benefit plans" (as such term is defined by Section 3(3) of the machineryEmployee Retirement Security Act of 1974, equipmentas amended ("ERISA")), mechanical and spare parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and fixtures described on Schedule 2.01(b)(vi);
"employee pension benefit plans" (viias such term is defined by Section 3(2) all current and prior insurance Contracts of ERISA) and all rights of other pension, profit sharing or cash or deferred compensation plans and trusts and assets thereof and any nature with respect theretoother employee benefit plan or arrangement thereof, including all insurance proceeds received or receivable thereunder;
(viii) all owned or leased desktop computersif any, laptopsmaintained by Adaptive, 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 ABL 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 other Adaptive Subsidiaries or any third party on Schedule 2.01(b)(xii);
(xiii) all claimsbehalf of Adaptive, 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 ABL 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)Adaptive Subsidiaries; 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) any other provision of this Agreement to the contrary, no Designated Purchaser Seller shall purchase retain ownership of and shall not hereby or otherwise acquire any sell or transfer, and the Assets shall not include, the Seller’s right, title and interest in or in, to any and under all of its assets, properties and rights or properties of ▇▇▇▇▇▇not specifically included in the Assets, Seller or their respective Affiliatesincluding the following (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:):
(i) all All cash, cash equivalents, marketable securities and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationbank accounts of the Seller;
(ii) any and Other than the Transferred Permits, all Accounts ReceivablePermits of the Seller;
(iii) any Other than the Acquired Contracts, all Contracts used in to which the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller and its Affiliatesis a party;
(iv) except to Other than the extent included in Transferred Personal Property, all equipment and personal property of the Purchased Assets under Section 2.01(a)(vSeller (including, for the avoidance of doubt, all injection molding machines, computer numerical control (CNC) 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)(ivmachines and tool room equipment and tools);
(v) Other than the Transferred Inventory, all Intellectual Property inventory and raw materials of the Seller;
(vi) Other than the Transferred Accounts Receivable, all accounts, notes and other receivables of the Seller;
(vii) 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 intellectual property rights of any nature with respect thereto, including all insurance proceeds received or receivable thereunderthe Seller;
(viii) Other than the Transferred Prepaids, all prepaid deposits and prepaid expenses of the Seller;
(ix) Other than the Transferred Claims, all claims of the Seller against third parties;
(x) Other than the contractual rights afforded to Buyer under the Lease Agreement (as defined in Section 1.01(c)(iii)), all rights of the Seller in or to any real property owned or leased desktop by the Seller;
(xi) All tax refunds and credits (whether by payment, credit, offset or otherwise);
(xii) All insurance policies issued to or for the benefit of the Seller or any of its affiliates, all proceeds therefrom and all rights, claims, credits or causes of action thereunder;
(xiii) The shares of stock or other ownership interests in the Seller;
(xiv) The corporate or company seal, minute books, stock books, blank share certificates, and other records relating to the corporate or other legal organization of the Seller and returns of Taxes (as defined below in Section 3.18) for Taxes accruing before the Closing Date
(xv) Other than the Specified Transferred Items, all computers, laptops, tablets, mobile furniture and office and desk supplies;
(xvi) All (A) office phones and similar assets primarily (B) personal computers used by employees any of Seller or its Affiliates other than the Transferred Employees;
(ixxvii) All warehouse racking and, except as set forth on Schedule 1.01(a)(xii), all other Information Technology Assets other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xixmaterial handling equipment (e.g., pallet jacks, forklifts, conveyor systems, shrink wrap devices, etc.);
(xxviii) 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 set forth on Schedule 2.01(b)(xii1.01(a)(xiii), all cars, trucks and other vehicles;
(xiiixix) all claimsAll compensation, counterclaimsincentive, causes of actionretirement, choses in actionstock or stock-based employee benefit or employment-related plans, rights of recoverypolicies, arrangements or agreements and rights of set-off in the assets of any kind (including all damages and payments for pastsuch plans, present policies, arrangements 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)agreements; and
(xvxx) The rights which accrue to any real property of the Seller Parties under this Agreement or interest in real property other than the Transferred Real Propertyany Related Instrument.
Appears in 1 contract
Sources: Asset Purchase Agreement (Communications Systems Inc)
Excluded Assets. Notwithstanding anything in Section 2.01(a) 2.1 or elsewhere in this Agreement to the contrary, no Designated Purchaser the Purchased Assets shall purchase not include any assets other than the assets specifically listed or otherwise acquire described in Section 2.1, and any rightcorresponding Schedules, title and, without limiting the generality of the foregoing and interest in or to for greater certainty, shall expressly exclude the following (collectively, "Excluded Assets"):
(a) any assetscash and cash equivalents, rights or properties of all bank account balances and all ▇▇▇▇▇▇, 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▇ cash;
(iib) any Taxes, including duty drawbacks or duty refunds, and property Taxes, refundable to the Vendor or a Vendor Affiliate in connection with the Purchased Business in respect of transactions, or in respect of the period, prior to the Effective Time, and any refundable Taxes or Tax credits;
(c) subject to Section 5.20, any refunds due from, or payments due on, claims with the insurers of the Vendor or a Vendor Affiliate;
(d) the minute books and corporate records of each of the Vendor and the Vendor Affiliates;
(e) all Accounts Receivable;
(iiif) any Contracts used all books, documents, records and files prepared in the Triage Business that relate connection with or relating to the divisiontransactions contemplated by this Agreement, corporate officeincluding bids received from other parties and analyses relating to the Purchased Assets, overhead the Assumed Liabilities or back-office functions of Seller and its Affiliatesthe Purchased Business;
(ivg) except to the extent included other than as provided in the Purchased Assets under Section 2.01(a)(v) or Section 2.01(a)(xviii)Transition Services Agreement, any Contracts pursuant rights of the Purchased Business to which rights in Intellectual Property are granted to any Asset Seller Entityreceive from the Vendor or a Vendor Affiliate corporate overhead and shared services, including Contracts described on Schedule 2.01(b)(iv)treasury, corporate information services, corporate sales and account management, legal, tax, human resources, risk management, finance and group purchasing plans;
(vh) all corporate, financial, taxation and other records of the Vendor and the Vendor Affiliates other than the Business Information;
(i) rights in any real property, whether owned or leased, other than such rights relating to (i) the Leased Properties and (ii) the temporary co-location arrangements pursuant to the Premises License Agreement;
(j) except for the Transferred Equipment, all other equipment that is both (i) owned and (ii) used or held for use by the Vendor or any Vendor Affiliate and the leased furniture;
(k) all extra-provincial, sales, excise or other licenses or registrations issued to or held by the Vendor and Vendor Affiliates, whether in respect of the Purchased Business or otherwise;
(l) any rights of the Vendor and the Vendor Affiliates under this Agreement or any other Transaction Document;
(m) any and all Intellectual Property of the Vendor and the Vendor Affiliates and any tangible embodiments of any such property other than (A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vin) any and all employee data 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)Employee Information;
(viio) all current the books and prior insurance Contracts records that the Vendor and all rights the Vendor Affiliates are, in the reasonable opinion of any nature with respect theretoVendor's counsel, including all insurance proceeds received or receivable thereunderrequired by Law to keep;
(viiip) all owned or leased desktop computers, laptops, tablets, mobile phones the Desktop Software and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred EmployeesBusiness Application Software;
(ixq) all other Information Technology Assets other than those described stock or equity interests 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)Person; and
(xvr) any real property or interest the other assets and rights listed in real property other than the Transferred Real PropertySchedule 2.2(r).
Appears in 1 contract
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(a) to the contrary2.1(a), no Designated Purchaser shall purchase will not purchase, assume or otherwise acquire any rightacquire, and the Seller Parties and their respective Affiliates will retain all the rights, title and interest in and to, any and all assets of the Seller Parties or to any of their respective Affiliates that are not expressly included in the Purchased Assets (collectively, the “Excluded Assets”), including 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 Seller Parties or any of their respective Affiliates leases, subleases or licenses real property;
(3) all Nonperforming Loans and Loans to Retained Employees;
(4) the Excluded Assets”)Contracts;
(5) all assets related to employee benefit arrangements of the Seller Parties or any of their respective Affiliates, including the following:Employee Plans;
(6) all Intellectual Property owned by or (except as included in the Assumed Contracts) licensed to the Seller Parties and their respective Affiliates, including the Seller Entity Names and the other Intellectual Property identified on Schedule 2.1(b)(6), subject to the license in Section 8.6(b);
(7) all right, title and interest in and to the IT Assets owned by or (except as included in the Assumed Contracts) leased or licensed to the Seller Parties and their respective Affiliates including the IT Assets identified on Schedule 2.1(b)(7);
(8) all Books and Records (or portions thereof) in any form or media (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 divisionTransferred Business but cannot, corporate officewithout unreasonable effort or expense, overhead be separated from Books and Records maintained by the Seller Parties or back-office functions of Seller and its Affiliates;
their respective Affiliates in connection with the Retained Businesses, (ivii) except that relate to the Wealth Management Business, to the extent included in such Books and Records are 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 property of the Products set forth on Schedule 2.01(b)(xii);
Third-Party Broker-Dealer and not owned by FNS or Seller, (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 Propertyiii) to the extent related to Excluded Assets, Excluded Liabilities or Business Employees or Affiliated Employees who do not become Transferred Business Employees or (iv) consisting of personnel files and records; provided that, to the items described extent permitted under, and in this accordance with, Section 2.01(b7.1(b), Seller shall use commercially reasonable efforts to provide Purchaser with access to any such books, records, files and other data in clause (i) or not otherwise included in Purchased Assets under Section 2.01(a)(xvi)above; Table of Contents
(9) any foreclosed property and other real estate owned;
(xiv10) all cells lines other than those described in Section 2.01(a)(xx), including the remaining portion any refunds or credit of any cell line of which an aliquot thereof is included in or against Taxes with respect to the Purchased Assets pursuant to Section 2.01(a)(xx)or the Transferred Business for a Pre-Closing Period;
(11) all licenses, charters, and legal entities of the Seller Parties or their respective Affiliates; and
(xv12) any real property or interest in real property other than all Retained In-Process Loans; and
(13) the Transferred Real PropertyServicing Rights, including all rights of and benefits accruing to the Seller Parties under the Servicing Agreements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Northwest Bancshares, Inc.)
Excluded Assets. Notwithstanding anything in Section 2.01(a) this Agreement to the contrary, no Designated Purchaser the Purchased Assets shall purchase or otherwise acquire not include any right, title and or interest in or to any assetsof the following properties, rights or properties assets of the Selling Entities (collectively, the “Excluded Assets”):
(a) Cash, cash equivalents and short-term securities;
(b) Any and all claims for refunds, carry backs or carry forwards of the Selling Entities in connection with “Taxes“ (as defined in Section 3.18) and all Tax Returns and other documents filed by the Selling Entities with any taxing authority;
(c) Any intercompany receivable balance due from UNOVA or any of its subsidiaries (other than intercompany trade receivables between the ▇▇▇▇▇▇ Group);
(d) All insurance policies and self-insurance programs and any coverage or other rights under such policies and self-insurance programs;
(e) Any property or asset designated as “assets held for sale” on the books and records of the Selling Entities and which are set forth on Schedule 1.2(e) (collectively, the “Assets Held for Sale”);
(f) Any property, right or asset to the extent exclusively relating to any other Excluded Asset or any of the “Excluded Liabilities” (as defined in Section 1.7);
(g) All assets of all “Employee Benefit Plans“ (as defined in Section 3.13(k)), including assets held in trust, including assets held in medical trusts, or insurance contracts for the benefit of Employee Benefit Plan participants or beneficiaries;
(h) All books, records, files and data pertaining to any of the Excluded Assets or any of the Excluded Liabilities;
(i) Subject to Section 8.5, all rights in, to and under the name “UNOVA” and the logos of the Selling Entities other than those logos that are primarily or exclusively related to the Business (including, without limitation, any logos with the names or brands listed in Section 1.1(r));
(j) Any rights of any of the Selling Entities under this Agreement;
(k) The franchise of each of the Selling Entities to be a corporation and its articles or certificate of incorporation, bylaws and other records pertaining to its corporate existence, and all books and records of a nature required by “Law” (as defined in Section 3.1(e)) to be maintained by the Selling Entities, including all financial and tax records relating to the Business that form part of the Selling Entities’ general ledger, provided that the Selling Entities shall make available for duplication at the Purchasing Entities’ expense copies of such financial and tax records as such documents exist as of the December Balance Sheet Date, the June Balance Sheet Date and the Transfer Date to the extent such records are related to the Business and as reasonably requested by the Purchasing Entities;
(l) All shares of capital stock or other equity interests in any other Person (as defined below) owned by the Selling Entities, including Honsberg Lamb Sonderwekzeugmaschinen GmbH;
(m) The real property located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Seller or their respective AffiliatesSouth Beloit, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets Illinois (the “Excluded AssetsSouth Beloit Facility”), 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);
(vn) all Intellectual Property other than The real property located at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ (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“Waynesboro Facility”); and
(xvo) any real property or interest in real property other than All rights existing under each contract set forth on Schedule 1.2(o) (the Transferred Real Property“Excluded Contracts”).
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrarycontrary in this Agreement, no Designated Purchaser the Sellers and their Affiliates shall retain, and Buyer shall not purchase or otherwise acquire (and the Purchased Assets shall not include), 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 other than the Purchased Assets (such retained assets being collectively referred to hereinafter as the “Excluded Assets”). The Excluded Assets shall include, including without limitation, the following:
: (a) (i) all cash the Contracts set forth in Section 1.2(a)(i) of the Sellers Disclosure Schedule (“Excluded Contracts”) and Cash Equivalents, including any cash or Cash Equivalents residing in any collateral account securing any obligation or contingent obligation;
(ii) any the Software, data and all Accounts Receivable;
information set forth in Section 1.2(a)(ii) of the Sellers Disclosure Schedule (“Excluded Software, Data and Information”), (iii) any Contracts used the Tangible Personal Property set forth in Section 1.2(a)(iii) of the Triage Business that relate to the divisionSellers Disclosure Schedule (“Excluded Tangible Personal Property”), corporate office, overhead or back-office functions of Seller and its Affiliates;
(iv) except to the extent included Trademarks set forth in Section 1.2(a)(iv) of the Purchased Assets under Section 2.01(a)(vSellers Disclosure Schedule (“Excluded Trademarks”) 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 (v) all Intellectual Property other than the domain names set forth in Section 1.2(a)(v) of the Sellers Disclosure Schedule (A) the Transferred Intellectual Property, and “Excluded Domain Names”); (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);
(viib) all current the assets, rights and prior insurance Contracts properties of every kind and all rights of any nature with respect theretodescription and wherever located, including all insurance proceeds received whether now existing or receivable thereunder;
(viii) all owned hereafter acquired, whether tangible or leased desktop computersintangible, laptopsreal, tablets, mobile phones and similar assets personal or mixed primarily used by employees of Seller in, or its Affiliates other than related to, the Transferred Employees;
(ix) all other Information Technology Assets other than those described in Section 2.01(a)(xviii) conduct 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 operation of the Products set forth on Schedule 2.01(b)(xii);
Excluded Businesses; (xiiic) 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 except as included in the Purchased Assets pursuant to Section 2.01(a)(xx1.1(a)(viii); and
, 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, blank stock certificates, all employee-related or employee benefit-related files or records and any other documents of the Sellers or any of their Affiliates (xv) any real property or interest in real property other than the Transferred Real Property.Purchased Entities); (d) all rights of the Sellers or any of their Affiliates (other than the Purchased Entities) arising under this Agreement, the Ancillary Agreements or from the consummation of the transactions contemplated hereby or thereby; (e) all cash and cash equivalents, securities (other than the Interests) and negotiable instruments on hand, in lock boxes, in financial institutions or elsewhere, of the Sellers or any of their Affiliates (other than the Purchased Entities), including any cash residing in any collateral cash account securing any obligation or contingent obligation; (f) all intercompany receivables between each of the Sellers and any of their Affiliates, or between any Affiliate of the Sellers and any other Affiliate of the Sellers; 8
Appears in 1 contract
Sources: Purchase Agreement
Excluded Assets. Notwithstanding anything in Section 2.01(a) The Purchased Assets shall not include:
2.2.1 cash of the Vendor and the Subsidiary, including cash equivalents and near cash investments such as government securities, guaranteed investment certificates, money market funds and short-term deposits at financial institutions;
2.2.2 the shares of the Subsidiary held by the Vendor and any amounts receivable from the Subsidiary on account of loans made by the Vendor to the contrarySubsidiary;
2.2.3 amounts accruing, no Designated Purchaser shall purchase receivable or otherwise acquire due to the Vendor or the Subsidiary from any right(i) Affiliate or related party of the Vendor or the Subsidiary, title (ii) shareholder, director or officer of the Vendor or the Subsidiary or any Affiliate or related party of the Vendor or the Subsidiary or (iii) any Affiliate or related party of any such shareholder, director or officer;
2.2.4 any amount accruing to, receivable by or due to each of the Vendor and the Subsidiary from any Governmental Authority on account of Taxes;
2.2.5 the interest of each of the Vendor and the Subsidiary in any litigation disclosed on Schedule 5.1.26 and in the proceeds of any judgment, order or decree issued or made in respect thereof;
2.2.6 the interest of each of the Vendor and the Subsidiary in (i) tangible capital property and equipment, including computer servers and related equipment used to run the Vendor’s electronic mail system described in Schedule 2.2.6, (ii) any assetscontract, rights agreement or properties commitment not listed in Schedule 2.1.5, (iii) any premises lease, other than the Premises Lease, and (iv) any tangible assets of the Vendor or the Subsidiary whether owned or leased located at the Subsidiary’s facility in Princeton, New Jersey;
2.2.7 the Insurance Policies and all prepaid insurance premiums in respect thereof (provided that S&N will nevertheless be covered as an insured under the insurance to be purchased by the Vendor pursuant to Section 8.10);
2.2.8 the Trade-▇▇▇▇▇▇▇ ‘Nucryst’ or any variation thereof or any domain name incorporating or related thereto; and
2.2.9 the Employee Plans and Pension Plans; which assets are referred to, Seller or their respective Affiliatescollectively, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (in this Agreement 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 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: Asset Purchase Agreement (NUCRYST Pharmaceuticals Corp.)
Excluded Assets. Notwithstanding anything in Section 2.01(a) to It is expressly understood and agreed that the contrary, no Designated Purchaser Acquired Assets shall purchase or otherwise acquire any not include Seller’s 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) all cash and Cash Equivalentsany assets, including any cash properties or Cash Equivalents residing in any collateral account securing any obligation or contingent obligationrights set forth on Schedule 1.1(b)(i) attached hereto;
(ii) any and all Accounts Receivableequipment, machinery, vehicles, tools or other tangible personal property of Seller other than the Acquired Equipment;
(iii) other than the Product INDs and the Product NDAs, any Contracts used in the Triage Business that relate to the divisionlicenses, corporate officepermits or franchises issued by any federal, overhead state, municipal or back-office functions of Seller and its Affiliatesforeign authority;
(iv) except other than the Acquired Equipment, any management information systems, including hardware and software;
(v) any shares of capital stock of, or other equity interests in, any entity;
(vi) the corporate charter, 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 organization and existence of Seller as a corporation;
(vii) any cash, cash equivalents or similar type investments, bank accounts, certificates of deposit, Treasury bills or other marketable securities;
(viii) all Contracts other than the Assigned Contracts (“Excluded Contracts”);
(ix) any real property or leasehold interest in real property;
(x) any patent or patent application other than 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 EntityTransferred IP, including Contracts described on Schedule 2.01(b)(iv)all rights to ▇▇▇ for past infringement thereof;
(vxi) all Intellectual Property any trademark registration or trademark registration application (together with the goodwill associated therewith) other than (A) to the extent included in the Transferred Intellectual PropertyIP, and (B) the Additional Assigned Intellectual Propertyincluding all rights to ▇▇▇ for past infringement thereof;
(vixii) 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 any 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 policies of Seller;
(xixiii) subject to any personnel or other employment-related records;
(xiv) any rights of Seller under this Agreement or any other Transaction Document;
(xv) any prepayments, deposits, or refunds of Taxes of Seller in connection with the provisions of Article VIII, any right to any refund Business or credit with respect the Acquired Assets that are attributable solely to Taxes relating to any paid during a Pre-Closing Tax Period;
(xiixvi) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii)all Employee Benefit Plans and any trusts or other assets attributable thereto;
(xiiixvii) all accounts receivable arising prior to Closing; and
(xviii) any actions, claims, counterclaims, causes of action, choses in action, rights of recovery, and choses in action or rights of set-off setoff of any kind (including all damages and payments for pastarising before, present on 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 Date relating to the items described referred to 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
Sources: Asset Purchase Agreement (Kala Pharmaceuticals, Inc.)
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 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 rightacquire, and the Seller Entities and their respective Affiliates will retain all the rights, title and interest in or to and to, any and all assets of the Seller Entities and their respective Affiliates that are not included in the Purchased Assets (collectively, 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 Seller Entities 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 and the One HSBC Center Lease;
(5) all assets related to employee benefit arrangements of any Seller Entity or any of their respective Affiliates, including the Employee Plans;
(6) all Intellectual Property are granted of the Seller Entities 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 Seller Entities and their respective Affiliates, including any rights (ownership, licensed or otherwise) to any Asset of the Seller EntityEntity Names and any other Trademarks of Seller Entities 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 Transferred Intellectual Property, and (B) Seller Entities or their respective Affiliates in connection with 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 Retained Businesses 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 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 personnel files and records; provided that, to the items described extent permitted under, and in this accordance with, 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)(xx7.1(b), including the remaining portion of Seller Entities shall provide Purchaser with access to any cell line of such books, records and other data for which an aliquot thereof is included in the Purchased Assets pursuant above-referenced separation would cause the Seller Entities to Section 2.01(a)(xx)incur unreasonable effort or expense; and
(xv) any real property 8) all licenses, charters, and legal entities of the Seller Entities or interest in real property other than the Transferred Real Propertytheir respective Affiliates.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (First Niagara Financial Group Inc)
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) any other provision of this Agreement to the contrary, no Designated Purchaser shall purchase Seller, the other Seller Entities and their respective Affiliates will retain and not sell, transfer, assign or otherwise acquire convey, any right, title of the following assets and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, the Seller or their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for Entities and the Purchased Assets Companies or any asset that is not a Purchased Asset (collectively, the “Excluded Assets”), including and Purchaser expressly understands and agrees that the followingExcluded Assets shall, as applicable, be transferred out of the Purchased Companies prior to the Closing, notwithstanding any other provision of this Agreement:
(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 Benefit Plans;
(iib) Other than any loans or advances from one Purchased Company to another Purchased Company, any and all Accounts Receivableloans and advances, if any, by the Seller Entities to any of their Affiliates or otherwise to the Business;
(iiic) any Contracts used in the Triage Business that relate to the division, corporate office, overhead or back-office functions of Seller Any 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) other than the Additional Assigned Business Intellectual Property;
(vid) Any and all Commercial Data other than the machineryTransferred Commercial Data and any and all Technology other than the Conveyed Technology;
(e) The Excluded Software;
(f) Any and all raw materials, equipmentpackaging or other materials, mechanical and spare partsstores, work-in-process, finished goods, supplies, toolsgoods in transit, toolingmodels, jigsprototypes and other inventories other than the Inventory;
(g) Any and all Tangible Personal Property Located at Seller’s W.K. ▇▇▇▇▇▇▇ Institute for Food & Nutrition Research (WKKI), moldsBattle Creek, diesMI;
(h) Any and all Contracts and portions of Contracts, production suppliesother than the Business Contracts and the Real Property Leases;
(i) Any and all Collective Bargaining Agreements;
(j) Except as expressly included in Section 2.4(c), samplesany and all owned and leased real property and other interests in real property;
(k) Except as expressly included in Section 2.4(g), media any and fixtures described on Schedule 2.01(b)(viall Tangible Personal Property;
(l) Except as expressly included in Section 2.4(h), any and all Information Technology;
(m) Except as expressly included Section 2.4(p), any and all personnel files other than the Transferred Personnel Files;
(n) Any and all refunds of Taxes for which Seller is responsible pursuant to Article VII (or credits received in lieu of such a refund);
(viio) all current Tax Returns and prior insurance Contracts other books and all rights records related to Taxes paid or payable by Seller, the other Seller Entities or any of any nature with respect thereto, including all insurance proceeds received or receivable thereundertheir respective Affiliates;
(viiip) Any and all owned Cash Amounts (excluding any Closing Cash Amounts);
(q) All books and records related to the Retained Claims;
(r) Except as provided for in Section 2.4(r) and subject to Section 5.11, any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or leased desktop computersnot Related to the Business, laptopsfor all periods before, tabletsthrough and after the Closing, mobile phones including any and similar assets primarily used by employees of Seller all refunds and credits due or its Affiliates 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;
(s) Any and all Permits, other than the Transferred EmployeesPermits;
(ixt) Any and all trade and accounts receivable;
(u) Any and all rights, claims, credits, 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 relating to or arising out of any of the matters set forth on Section 2.5(u) of the Seller Disclosure Schedules or out 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, a Purchased Company or any of their respective Affiliates to the extent 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 other Transaction Documents, (ii) all documents subject to the attorney-client privilege or work-product protection described in clause (i) of this paragraph and (iii) all documents maintained by Seller in connection with the transactions contemplated by this Agreement or any of the other Information Technology Assets Transaction Documents;
(w) Any and all assets of the Purchased Companies other than those described in Section 2.01(a)(xviii) or Section 2.01(a)(xix)the Purchased Company Assets;
(x) Any and all assets set forth on Section 2.5(x) of any the Seller Plan or any similar benefit plan, program or arrangement that is maintained or contributed to by any Seller or Affiliate of SellerDisclosure Schedules;
(xiy) subject The equipment referred to as “Line 3” and “Line 4” located at Seller’s facilities in Rome, Georgia and the provisions of Article VIIIequipment located at Seller’s facilities in Cincinnati, 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)Ohio; and
(xvz) Any and all other assets, business lines, properties, rights and claims of the Seller Entities or any real property of their respective Affiliates (including the Purchased Companies) not Related to the Business (including, for the avoidance of doubt, the Keebler Crackers Business) (collectively, the “Other Seller Business”). 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 Affiliates will acquire or be permitted to retain any direct or indirect right, title and interest in real property other than the Transferred Real Propertyany Excluded Assets.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to There shall be excluded from the contrary, no Designated Purchaser Purchased Assets and Seller shall purchase or otherwise acquire any retain all of its right, title and interest in and to the excluded assets all tangible and intangible property or right related to Mentergy's products and services (other than LearnLinc) (i.e., other than identified in Section 1.1 above and accordingly directly related to the LearnLinc Business and LearnLinc Software). For purposes of clarification, the excluded assets (the "Excluded Assets") specifically include the following assets, and Purchaser, shall acquire no right thereto:
(a) those assets physically located in the Troy, NY office and listed on SCHEDULE 1.2, together with all cash collected from the Seller's accounts receivable prior to the Effective Date (except and provided in Section 1.7) cash equivalents and short-term investments, accounts receivable related to the Mentergy business (i.e., other than the LearnLinc accounts receivable transferred under Section 1.7), all minute books, stock records and corporate seals, all rights to any assetsMentergy trade or business name (other than related to the LearnLinc Software, LearnLinc Business, or TestLinc), all rights to deposits and prepaid expenses (listed on SCHEDULE 1.2), claims for refunds (listed on SCHEDULE 1.2), or properties rights to offset (listed on SCHEDULE 1.2); all insurance policies and rights thereto (listed on SCHEDULE 1.2); any contract of ▇▇▇▇▇▇, Seller or their respective Affiliates, regardless not specifically identified as part of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (and concerning the “Excluded Assets”)Mentergy business, including all personnel records, other records that Seller is required by law to retain in its possession, all claims for refund of taxes and other governmental charges of whatever nature of Mentergy; all rights in connection with any employee benefit or welfare plan unrelated to the following:employees located in Troy, New York and any employer contribution related to those Mentergy employees; and,
(ib) 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 Seller under this Agreement and the collateral documents executed by Seller in connection 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 PropertyClosing.
Appears in 1 contract
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 in Section 2.01(a) to the contrarySeller shall not sell and transfer and shall retain, no Designated Purchaser and Buyer shall not purchase or otherwise acquire any rightacquire, title all of the following assets and interest in or to any assets, rights or properties of ▇▇Seller, as follows (collectively, the “Excluded Assets”):
(a) All (i) paper stock, forms and other supplies containing any logos, trade name, trademark or service ▇▇▇▇, if any, of Seller, other than all signage included in the Assets and (ii) the specific items of tangible personal property in or at, or affixed to the premises of, the Branches listed on Schedule 1.3(a), other than any such items that Buyer and Seller have mutually agreed to remove from or their respective Affiliatesadd to Schedule 1.3(a) following the date hereof, regardless in which case such Schedule delivered on the date hereof, as so modified, shall be deemed to constitute Schedule 1.3(a) for all purposes of kindthis Agreement.
(i) All of Seller’s owned or licensed computer software programs and associated licenses (other than manufacturer’s firmware on transferred equipment included in the Personal Property), description trade secrets and other intellectual property (other than customer lists for the Branch Offices), (ii) the names “First Bank” and “First Banks,” (iii) the names, descriptions and identifications of all account types and other products offered by Seller (whether or location not offered at the Branch Offices) and (iv) all logos, service marks, trade names and trademarks, advertising materials, slogans and any similar items used by Seller in connection with its business, whether or whether tangible not such is copyrighted or intangibleregistered.
(c) The Excluded Loans and any other non-performing loans as of the date hereof at the Branch Offices that are not listed on Schedule 1.1(d).
(d) Any other assets or properties of Seller not included in the Assets, realincluding all non-divested branches of Seller.
(e) All assets, personal or mixedrights and interests of Seller relating to the Branches in respect of Fiduciary Relationships, except for the Purchased Assets (the “Excluded Assets”)Deposits in respect of ESAs, including the following:
(i) all cash IRAs 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 or Assumed Liabilities as contemplated by 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 Property7.4.
Appears in 1 contract
Sources: Branch Purchase and Assumption Agreement (First Mid Illinois Bancshares 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 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