Acquired Assets. On the terms and subject to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets: (a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining; (b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases; (c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business; (d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties; (e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract; (f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4; (g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable; (h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; (i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i); (j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business; (k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business; (l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l); (m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits; (n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and (o) all assets held with respect to the Assumed Benefit Plans/Schemes.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Graco Inc), Asset Purchase Agreement (Carlisle Companies Inc)
Acquired Assets. On the terms and subject to the conditions set forth in this Agreement and pursuant to Sections 105, 363 and 365 of this Agreementthe Bankruptcy Code, at the Closing, Graco and Graco US Finishing Brands shalleach of the Sellers hereby agrees, and shall cause Sellers toto sell, sellassign, transfer, convey, transfer and deliver deliver, or cause to Purchasersbe sold, assigned, transferred, conveyed and delivered to the Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers(or one or more of its permitted designees), free and clear of any all Liens (except for Permitted Liens), all and the Purchaser (or one or more of its permitted designees) shall purchase and accept from each of the following Sellers:
(a) all right, title and interest of the following being Sellers in and to the “Acquired Assets”): Interests. Notwithstanding anything contained in this Agreement to the contrary, equity interests in the Excluded Subs shall not be included in the Interests;
(ib) all respective rights, title and interests of each of the equity ownership interestsSellers in and to all rights, beneficial properties and assets of the Sellers other than the Excluded Assets, including without limitation, those assets that are listed or otherwisedescribed below, in whether tangible or intangible, as the entities listed same shall exist on Schedule 2.1(i) the Closing Date, free and clear of all Liens except Permitted Liens (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets shall include all of the Asset Selling SubsidiariesSellers’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(ai) the Seller Owned Real Propertyall cash, certificates of deposit, bank deposits, negotiable instruments, marketable securities and other cash equivalents, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingaccrued but unpaid interest thereon;
(bii) all accounts receivable, whether reflected in the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinbalance sheet or otherwise, including real estate fixturesincluding, leasehold improvementswithout limitation, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesthose accounts receivable identified on Schedule 1.1(b)(ii);
(ciii) accounts receivable (all of the inventories, whether reflected in the balance sheet or otherwise, including, but not limited towithout limitation, all Extra-Liquid Finishing Business Intercompany Accounts Receivablethose inventories identified on Schedule 1.1(b)(iii), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(div) all tangible personal property (including equipment, machinery, equipment, parts, goodscomputers, furniture, furnishings, hardwarefixtures, computerstools, automobilesoffice supplies and all other tangible personal property owned by the Sellers, trucksincluding, tractorswithout limitation, trailers those items identified on Schedule 1.1(b)(iv);
(v) all Intellectual Property, whether registered or unregistered, and toolsthe applications and registrations therefore, all goodwill associated therewith, and all rights to pursue past, present and future enforcement or infringement thereof, including, without limitation, the Intellectual Property identified on Schedule 1.1(b)(v);
(vi) all rights in computer software programs and information technology systems, including, without limitation, those identified on Schedule 1.1(b)(vi);
(vii) [Reserved]
(viii) [Reserved]
(ix) the Assigned Contracts and all rights and incidents of interest to the Assigned Contracts pursuant to Section 1.2 hereof, which may include:
(1) all Project Documents and other agreements, contracts or arrangements associated with the Projects to which any Asset Selling Subsidiary Seller is a party that are Assigned Contracts and listed or described on Schedule 1.1(b)(ix)(1), including, without limitation:
(A) all landfill gas rights agreements;
(B) all site lease agreements;
(C) all gas purchase agreements;
(D) all power purchase agreements;
(E) all operation and maintenance agreements; and
(F) all agreements relating to the purchase and sale of renewable energy credits;
(2) all other agreements, contracts or arrangements between any Seller and a customer (the “Customer Contracts”) that are Assigned Contracts and listed or described on Schedule 1.1(b)(ix)(2);
(3) all other agreements, contracts or arrangements between any Seller and a vendor or other third party providing goods or services (the “Supplier Contracts”) that are Assigned Contracts and listed or described on Schedule 1.1(b)(ix)(3);
(4) all Leases with respect to the Leased Real Property that are Assigned Contracts and listed or described on Schedule 1.1(b)(ix)(4);
(5) all leases related to tangible personal property, including, without limitation, equipment leases, including, without limitation, those that are Assigned Contracts and listed or described on Schedule 1.1(b)(ix)(5); and
(6) all other Contracts of the Sellers;
(x) all permits, including, without limitation, the permits listed or described on Schedule 1.1(b)(x);
(xi) all books and records that are used in or have arisen from the Liquid Finishing Sellers’ conduct of the Business, including, but not limited towithout limitation, all tooling, molds, dies the Project Documents that are books and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Propertiesrecords;
(exii) the 3M-Related Agreements all payments, credits, claims for refunds, prepaid rent, deposits (including security deposits and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”utility deposits), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e)advances, but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 deferred charges and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contractother prepaid expenses;
(fxiii) all Business Intellectual Property of the Asset Selling Subsidiariesbank accounts and lockbox arrangements, goodwill associated therewithincluding, licenses and sublicenses granted and obtained with respect theretowithout limitation, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as those items listed or described on Schedule 1.2(a) or Schedule 1.41.1(b)(xiii);
(gxiv) all Permits issued to or held by any Asset Selling Subsidiary avoidance actions and relating to similar rights and causes of action, including causes of action under Sections 544 through 553 of the Liquid Finishing Business, to Bankruptcy Code against the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco Purchaser or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing BusinessAffiliates, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Recordsdirectors, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary officers, representatives, employees or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesagents;
(ixv) all claims, prepayments, prepaid expenses, refunds, causes Employee Benefit Plans of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets Company listed or described in Sections 2.2(h) and 2.2(ion Schedule 1.1(b)(xv);
(jxvi) all inventory any intercompany payables, liabilities and obligations (including finished products, work in process, raw materials, supplies, spare partsof any nature or kind, and packaging materialswhether based in common law or statute or arising under written contract or otherwise, known or unknown, fixed or contingent, accrued or unaccrued, liquidated or unliquidated, real or potential) in the possession of to any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by Seller, as to which any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which Acquired Company is an asset of Graco Australiaobligor or is otherwise responsible or liable; and
(oxvii) all other rights, properties or assets held with respect to of the Assumed Benefit Plans/SchemesSellers, including, without limitation, those that are listed or described on Schedule 1.1(b)(xvii).
Appears in 2 contracts
Sources: Asset Purchase Agreement (U S Energy Systems Inc), Asset Purchase Agreement (Silver Point Capital L.P.)
Acquired Assets. On the terms and subject to the conditions of set forth in this Agreement, at the Closing, Graco Sellers shall sell, assign, transfer, convey and Graco US Finishing Brands shalldeliver, or cause to be sold, assigned, transferred, conveyed and delivered, to Buyer, and Buyer shall cause Sellers to, sell, convey, transfer purchase and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase accept from Sellers, free and clear of any Liens (except for Permitted Liens), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interestsSellers' rights, beneficial or otherwise, title and interests in the entities listed on Schedule 2.1(i) and to (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iiix) all of the assets, properties, rights, claims, privilegesrights and claims of TG Canada relating primarily to the Gasboy line of business, and interests (y) all of the Asset Selling Subsidiaries assets, properties, rights and claims of every kind and character and wherever locatedGasboy, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for case excluding the Excluded Assets and the Excluded Subsidiaries ((x) and (y) being collectively referred to herein as the “Asset Selling Subsidiaries Acquired "Gasboy Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include ") and (ii) all of the Asset Selling Subsidiaries’ rightSellers' rights, title and interest interests in and to the followingBusiness, except including all the assets, properties, rights, and claims of Sellers related to the Business including MSI (other than the Excluded Assets, the Excluded Subsidiaries and the Gasboy Assets), as the same shall exist at the Closing (such rights, title and interests in and to all such assets, properties, rights and claims described in this clause (ii) being collectively referred to herein as the "Tokheim Assets" and, together with the Gasboy Assets, the "Acquired Assets"). The sale and purchase of the Acquired Assets shall be free and clear of all Encumbrances (to the extent constituting applicable as provided in the Sale Order), in each case other than Permitted Encumbrances and Assumed Liabilities. Notwithstanding anything to the contrary contained in this Agreement, the terms Acquired Assets, Assumed Liabilities, Excluded Assets:Assets and Excluded Liabilities do not refer to the Excluded Subsidiaries. The Acquired Assets shall include, but not be limited to, all of Sellers' rights, title and interests in and to the assets, properties, rights and claims described in the following clauses (a) through (m) below (except as expressly excluded under Section 1.2 below):
(a) the Seller Owned Real PropertyAll of those items of equipment, together with all buildingsmachinery, structuresvehicles, installationstooling, fixtures dies, accessories, furniture and other improvements situated thereon tangible personal property owned by Sellers listed or referred to on Schedule 1.1(a) (which Schedule may include items that are subject to capitalized leases) and all easementsany other tangible personal property acquired by Sellers in the ordinary course of business consistent with past practice after the date hereof but prior to the Closing in connection with the Business (collectively, rights of way and other rightsthe "Personal Property"). As used in this Agreement, interests and appurtenances of any Asset Selling Subsidiary therein the Personal Property shall not include the fixtures located on real property not included in Real Property or thereunto pertaining;Inventory.
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, partsAll supplies, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished productsmaterials, work in process, raw materials, supplies, spare parts, inventory and packaging materials) stock in trade owned by Sellers for use or sale in the possession ordinary course of any Asset Selling Subsidiary the Business (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to collectively, the Liquid Finishing Business;"Inventory").
(kc) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal The owned real property of any Asset Selling Subsidiary listed described on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemes.1.1
Appears in 2 contracts
Sources: Purchase Agreement (Dresser Inc), Purchase Agreement (Tokheim Corp)
Acquired Assets. On At Closing, upon the terms and subject to the conditions of this AgreementAgreement and in exchange for the consideration set forth herein and the assumption of the Assumed Liabilities by Bayer, at the Closing, Graco Maxygen and Graco US Finishing Brands Holdings shall, and shall cause Sellers totheir Affiliates to assign, selltransfer, convey, transfer convey and deliver (provided that such delivery shall be subject to Purchasers, Sections 4.4(c)(iii) and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers4.4(d)) to Bayer, free and clear of any Liens (except for Permitted all Liens), and Bayer shall acquire and receive, subject to the terms and conditions of this Agreement, from Maxygen, Holdings and each of their Affiliates, all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interestsMaxygen’s, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), Holdings’ and each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiariestheir Affiliates’ right, title and interest in and to the following, except to following assets (the extent constituting Excluded “Acquired Assets:”):
(a) the Seller Owned Real Acquired Intellectual Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesInventory;
(c) accounts receivable (including, but not limited toto the extent transferable, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, Governmental Approvals and deposits held by any Asset Selling Subsidiary relating to all pending applications for Governmental Approvals for the Liquid Finishing Businessuse of the Compounds;
(d) all tangible personal property (rights, claims, credits or rights of set-off with respect to Acquired Assets arising at any time, whether liquidated or unliquidated, fixed or contingent, including machineryrights of indemnification, equipmenthold harmless agreements, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but covenants not limited to, all tooling, molds, dies to prosecute and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Propertiesagreements;
(e) the 3M-Related Agreements Regulatory Information; and
(f) the Acquired Books and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Records. Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if 2.1 lists (i) such non-disclosure constitutes a misrepresentation the applicable entity (Maxygen, Holdings or otherwise) that will, subject to the terms and conditions of this Agreement, transfer certain specific Acquired Assets or license the Intellectual Property under Section 4.11 the License Agreement, and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property amount of the Purchase Price to be allocated to each such Acquired Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesIntellectual Property.
Appears in 2 contracts
Sources: Technology Transfer Agreement (Maxygen Inc), Technology Transfer Agreement (Maxygen Inc)
Acquired Assets. On 6.8.1 To the terms and subject extent Acquired Assets are specifically identified in a Supplement, Kraft agrees to convey (or shall cause the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallapplicable Eligible Recipient to convey) to Supplier, and Supplier agrees (or shall cause Sellers toan Affiliate to agree) to accept, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear as of any Liens (except for Permitted Liens)the Commencement Date, all of Kraft’s (or the following (all of the following being the “Acquired Assets”): (iapplicable Eligible Recipient’s) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the followingAcquired Assets, except other than the Acquired Assets in the Deferred Countries. In consideration for such conveyance, Supplier agrees to pay Kraft on the Commencement Date the Acquired Assets Credit specified in the applicable Supplement. In addition, Supplier shall be responsible for, and shall pay, or provide evidence of exemption from, all sales, use, goods and services and other similar taxes arising out of the conveyance of the Acquired Assets, excluding income taxes and franchise taxes. Kraft represents and warrants to Supplier that Supplier (or its Affiliates) shall take good title to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated Acquired Assets as of October 23the Commencement Date, 2008, by free and among Graco US Finishing Brands (as the assignee clear of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property liens. The conveyance of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals be effected by the delivery of such Books and Records and the applicable each Acquired Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals Supplier where possible or, where this is not possible, by the delivery of such Books a ▇▇▇▇ of sale in substantially the form set forth in Exhibit 2. Except as otherwise expressly provided in this Section 6.8, Kraft CONVEYS THE ACQUIRED ASSETS TO SUPPLIER ON AN AS-IS, WHERE-IS AND WITH-ALL-FAULTS BASIS. KRAFT HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACQUIRED ASSETS, OR THE CONDITION OR SUITABILITY OF SUCH ACQUIRED ASSETS FOR USE BY SUPPLIER TO PROVIDE THE SERVICES, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Kraft shall convey and Records where copies of such Books and Records are insufficient Supplier shall pay for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and in each Deferred Country, on the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets same terms described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished productsthis Section 6.8.1, work in process, raw materials, supplies, spare parts, and packaging materials) in on the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition date Supplier assumes responsibility for providing Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemesfrom such country.
Appears in 2 contracts
Sources: Master Professional Services Agreement (Mondelez International, Inc.), Master Professional Services Agreement (Mondelez International, Inc.)
Acquired Assets. On the terms and subject to the conditions of ---------------- contained in this Agreement, at on the ClosingClosing Date, Graco and Graco US Finishing Brands shallPurchaser shall acquire from Seller, and Seller shall cause Sellers toconvey, sell, conveyassign, transfer and deliver to PurchasersPurchaser by appropriate instruments reasonably satisfactory to Purchaser and its counsel, on an "as is" basis and Purchaser Parent subject to the assumption of all Liens relating to the Acquired Assets and US Purchaser shall, all other liabilities relating to the Acquired Assets and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens)the Business, all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, titles and interests of the Asset Selling Subsidiaries of every kind and character and wherever locatednature owned, licensed or leased by Seller to the extent related or used in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include Business including all of the Asset Selling Subsidiaries’ rightfollowing (collectively, title and interest in and to the following"Acquired -------- Assets"), except to the extent constituting but excluding all Excluded Assets:
(ai) all cash items listed on the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;Acquired Assets Schedule; --------------------------
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(dii) all tangible personal property (including machinery, equipment, parts, goodstools, furniture, furnishingsspare parts and supplies, hardwarecomputers and all related equipment, computers, automobiles, trucks, tractors, trailers telephones and toolsall other tangible personal property listed on the Acquired Assets Schedule; --------------------------
(iii) of any Asset Selling Subsidiary used in the Liquid Finishing Businessall rights existing under all purchase orders to purchase or sell goods or products, including, but not limited towithout limitation, any such purchase order listed on the "Contracts Schedule" and under each other contract listed on the ------------------ Contracts Schedule and specifically identified as a contract to be assigned to ------------------ Purchaser (collectively, the "Assigned Contracts") See Schedule 2.1(a)(iii); -------------------
(iv) all toolingdistribution systems and networks including, moldswithout limitation, dies the right, from and other equipment in which Graco US Finishing Brands has after the Closing Date, to contact and do business with any rights distributor, broker or interests pursuant to sales representative that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US distributes Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties's products ;
(ev) the 3M-Related Agreements all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents and all Contracts other books, correspondence and business records;
(vi) all Proprietary Rights, if any, including, without limitation, those listed on the Proprietary Rights ; -------------------------
(vii) all trade accounts receivable as of any Asset Selling Subsidiary relating the Closing Date, such accounts receivable to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as be set forth on Schedule 4.10(e), but excluding any Contract a schedule to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 be jointly prepared by Seller and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property as of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under Closing (the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets"Acquired Receivables"); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemes.---------------------
Appears in 2 contracts
Sources: Asset Purchase Agreement (Carsunlimited Com Inc), Asset Purchase Agreement (Carsunlimited Com Inc)
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Graco and Graco US Finishing Brands shallSeller shall sell, and shall cause Sellers to, selltransfer, convey, transfer assign and deliver to PurchasersBuyer, and Purchaser Parent Buyer shall purchase, acquire and US Purchaser shallassume from Seller, all of Seller’s Interest in and shall cause Purchasers toto the following assets, purchase from Sellersproperties, rights and interests, free and clear of any Liens all Encumbrances (except for other than Permitted LiensEncumbrances), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:):
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures Site and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingthe Facility;
(b) those easements and other Contracts relating to the Site set forth in Section 2.1(b) of the Seller Disclosure Schedule (“Assumed Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesContracts”);
(c) accounts receivable (includingthe machinery, equipment, vehicles, furniture, Inventory and other personal property used primarily in connection with the operation of, or for consumption at, the Facility or the Site, including any property purchased but not limited toyet located at the Facility or the Site (collectively, all Extra-Liquid Finishing Business Intercompany Accounts Receivable“Personal Property”), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers Permits and tools) of any Asset Selling Subsidiary used in Environmental Permits relating to the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies Site and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative PropertiesFacility;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating entered into by Seller related to the Liquid Finishing Business Facility or the Site, as set forth in Section 2.1(e) of the Seller Disclosure Schedule (collectively with the Assumed Real Property Contracts, the “Acquired Assumed Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) any and all Business Intellectual Property inventory items used for the Business, including: consumables; lubricants, chemicals, fluids, lubricating oils, fuel oil, filters, fittings, connectors, seals, gaskets, hardware, wire and other similar materials; maintenance, shop and office supplies; replacement, spare or other parts; tools, special tools or similar equipment; and similar items of movable property and other materials located at or in transit to, or held for use at the Asset Selling SubsidiariesFacility or the Site or used in connection with the Facility or the Site (collectively, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4“Inventory”);
(g) all Permits issued of Seller’s rights to use and sell electricity, capacity or held by any Asset Selling Subsidiary and relating ancillary services with respect to the Liquid Finishing Business, to period commencing after the extent transferableEffective Time;
(h) all Books and Records of any Asset Selling Subsidiary relating Intellectual Property related solely to the Liquid Finishing Business (except for Site or Facility or used primarily in connection with the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes Emission Allowances held by or allocated or issued to Seller or with respect to Seller’s Interest in the Site or Facility in connection with the Business or the Acquired Assets for the year in which Closing occurs and each year thereafter or otherwise needed to offset Seller’s share of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating emissions with respect to the payment of Taxes) of any Asset Selling Subsidiary relating Facility under the Emissions Agreement prior to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i)Closing Date;
(j) all inventory the rights which, if not for the transactions contemplated herein, would have accrued to Seller in and to any causes of action, Claims (including finished productsrights under Insurance Policies to proceeds, work refunds (other than refunds relating to Taxes for Pre-Closing Periods as prorated pursuant to the method described in process, raw materials, supplies, spare parts, Section 3.4(a)) or distributions thereunder paid after the Closing Date) and packaging materials) in the possession of any Asset Selling Subsidiary defenses against third parties (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiaryindemnification and contribution) relating to and to the Liquid Finishing Businessextent of any Acquired Assets or Assumed Liabilities arising after the Closing Date;
(k) all goodwill of any Asset Selling Subsidiary relating unexpired warranties, indemnities and guaranties made or given by manufacturers, overhaulers, assemblers, refurbishers, vendors and service providers and other comparable third parties to the Liquid Finishing Businessextent relating exclusively to the Facility, the Site or the Acquired Assets (but excluding those warranties, indemnities and guarantees related to any Excluded Assets), whether provided in connection with the purchase of equipment or entered into independently of such purpose;
(l) the PJM capacity sales listed in Section 2.1(l) of the Seller Disclosure Schedule and all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);PJM capacity sales entered into by Seller after the Execution Date with respect to its Interest, in each case excluding capacity sales revenue received by Seller prior to the Closing Date; and
(m) all other assets, rights and interests used exclusively in relation to or in connection with the Assigned Section 6.2(g) Rights and BenefitsFacility; provided, however, that the Assigned Transition Services Rights and Benefits and Acquired Assets shall not include the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesExcluded Assets.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Dynegy Inc.), Asset Purchase Agreement (Dynegy Inc.)
Acquired Assets. On the terms and subject to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallSeller will sell, and shall cause Sellers to, sellassign, convey, transfer and deliver to PurchasersBuyer, and Purchaser Parent Buyer will purchase, assume and US Purchaser shall, and shall cause Purchasers to, purchase acquire from SellersSeller, free and clear of any Liens (all Encumbrances except for Permitted Liens)Encumbrances, all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ Seller’s right, title and interest in and to the followingassets used by Seller to carry out its VA Distribution Business in the Transferred Territory as of the Effective Time, except for the assets expressly excluded below or excluded in Section 2.2, including the assets more specifically described below and added after the date hereof pursuant to Section 2.6 (collectively, the extent constituting Excluded “Acquired Assets:”):
(a) the Seller real property described on Schedule 2.1(a) (including the control buildings and the other buildings and related improvements located thereon) (collectively, the “Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining”);
(b) all of Seller’s Easements in the Real Property Leases Transferred Territory that are primarily related to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinthe VA Distribution Business, including real estate fixturesthe easements listed on Schedule 2.1(b) (including the control buildings and the other buildings and related improvements located thereon) (collectively, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesthe “Transferred Easements”);
(c) accounts receivable all of the substations, control buildings, service centers and other buildings, fixtures and improvements located on the Owned Real Property or a Transferred Easement, unless such substation, building, fixture or improvement is (includingi) used in both Seller’s VA Distribution Business and Seller’s transmission business (a “Shared Location”) and (ii) included on Schedule 2.2(a); Schedule 2.1(c)(1) lists all of the service centers and substations in the Transferred Territory, but not limited towhether located on Owned Real Property or a Transferred Easement, that are used only in the VA Distribution Business; Schedule 2.1(c)(2) lists all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to of the Liquid Finishing BusinessShared Locations in the Transferred Territory;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative PropertiesDistribution Facilities;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such PurchaserBuyer’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired ContractShared Equipment;
(f) all Business Intellectual Property of the Asset Selling SubsidiariesInventories, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as but excluding those Inventories not located at a facility listed on Schedule 1.2(a2.1(c)(1) or Schedule 1.42.1(c)(2) or deemed to be included as an Acquired Asset pursuant to Section 2.6(c) hereof;
(g) except for the Excluded Tangible Personal Property, all Permits issued to 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 that are owned by Seller and used or held for use by any Asset Selling Subsidiary Seller primarily in the VA Distribution Business in the Transferred Territory (the “Tangible Personal Property”), provided, that with respect to vehicles and relating to trailers owned by Seller, the Liquid Finishing Business, to the extent transferableAcquired Assets will only include those vehicles and trailers set forth on Schedule 2.1(g);
(h) subject to Section 2.5, all Books and Records rights of any Asset Selling Subsidiary Seller as lessee under the leases set forth on Schedule 2.1(h) (the “Equipment Leases”) to the extent relating to equipment or vehicles primarily related to the Liquid Finishing VA Distribution Business (except for in the Books and Records identified as Excluded Assets)Transferred Territory; provided, howeverthat with respect to vehicles and trailers subject to an Equipment Lease, that: (1) where any such Books only those vehicles and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposestrailers set forth on Schedule 2.1(h);
(i) all Contracts in effect as of the date of this Agreement that relate primarily to the VA Distribution Business in the Transferred Territory, including operating agreements, franchise agreements, customer contracts, electrical service agreements, interconnect agreements, interchange agreements, borderline agreements, encroachment agreements, pole-attachment agreements, joint-use agreements, and including any Contracts that relate primarily to the VA Distribution Business in the Transferred Territory that are entered into by Seller after the date of this Agreement in accordance with the terms of Section 7.1, but not including the Power Purchase Agreements except as otherwise provided in Section 7.23 (collectively, the “Transferred Contracts”);
(j) all customer lists and customer information databases (including customer load data); vendor lists; operational and performance data for the Acquired Assets, GIS information, books and records; meter reading and service data; operating, safety and maintenance records; warranty information; engineering designs, plans, blueprints and as-built plans and specifications and procedures; system drawings; ledgers, files, documents, studies, reports, creative materials, advertising and promotional materials, and other written, printed or electronic materials, in each case, to the extent primarily related to the VA Distribution Business in the Transferred Territory and in Seller’s possession or in the possession of any third parties within Seller’s reasonable control or influence;
(k) all Permits of Seller, including Transferable Permits, that relate primarily to the VA Distribution Business in the Transferred Territory;
(l) all unexpired warranties relating to the Acquired Assets;
(m) all Accounts Receivable and Unbilled Revenue, together with all rights to enforce, execute on or collect the same, and all rights relating to the Customer Deposits (but not the cash related to such deposits);
(n) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, off and rights of recoupment (including any such item of Seller against third parties to the extent relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i)Assumed Obligations;
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect Intellectual Property described in Schedule 2.1(o) (the “Acquired Intellectual Property”);
(p) rights to CRRs to which Seller is entitled as an LSE for the Transferred Territory pursuant to the Assumed Benefit Plans/SchemesPJM Agreements, including (i) all Auction Revenue Rights to which Seller is entitled that are allocable to the Transferred Territory and (ii) all Financial Transmission Rights to which Seller is entitled that are allocable to the Transferred Territory based on the Transferred Territory’s load ratio share of the peak load of Allegheny’s PJM Load Zone pursuant to the PJM Agreements, except to the extent such rights have been assigned by Seller pursuant to the Power Purchase Agreements;
(q) rights to serve the existing certified service territory of Seller in the portion of the Commonwealth of Virginia described in Annex A hereto;
(r) the Transferring Employee Records, to the extent permitted by Law;
(s) the assets deemed to be Acquired Assets pursuant to Sections 2.5 or 2.6;
(t) all carbon credits and renewable energy attributes, including renewable energy credits, green tags, carbon emissions reductions and similar attributes, if any, to the extent primarily related to the VA Distribution Business in the Transferred Territory; and
(u) the rights and obligations related to Regulatory Assets.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Allegheny Energy, Inc), Asset Purchase Agreement (Allegheny Energy, Inc)
Acquired Assets. On the terms and subject to the conditions of Closing Date, in accordance with this Agreement, at the Closing, Graco Seller and Graco US Finishing Brands shall, and its Subsidiaries shall cause Sellers to, sell, convey, transfer transfer, assign and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from SellersBuyer, free and clear of any Liens (except for Permitted Liens)and all Encumbrances, and Buyer will purchase, acquire and accept, all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Seller's and its Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ ' respective right, title and interest in and to the followingfollowing properties, except to assets and other rights, personal or mixed, tangible or intangible (collectively, the extent constituting Excluded "Acquired Assets:"):
(a) the The Equipment of Seller Owned Real Propertyand its Subsidiaries listed on Schedule 2.1(a), together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingEquipment transferred to Buyer pursuant to Section 2.4 (c) (the "Acquired Equipment");
(b) The inventory of Seller and its Subsidiaries listed on Schedule 2.1(b) (the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases"Acquired Inventory");
(c) accounts receivable The Contracts of Seller and its Subsidiaries (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivableincluding any future claims arising from or related to such contracts) listed on Schedule 2.1(c) hereto and the Backlog related to such Contracts (the "Assumed Contracts"), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) Copies or originals of all tangible personal property books, records, data (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of in any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Sellermedia), 3M Company papers and 3M Innovative Properties instruments of whatever nature and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as wherever located to the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Propertiesextent related to the Acquired Assets;
(e) All licenses, sublicenses and other contract rights held by Seller and its Subsidiaries in connection with the 3MBusiness listed on Schedule 2.1(e), including all Insituform and NuPipe licenses, sublicenses and rights to use or operate under Insituform or NuPipe patents or trademarks, and intangible or intellectual property rights, including know-Related Agreements and all Contracts of any Asset Selling Subsidiary how, relating thereto or to the Liquid Finishing Business (the “"Acquired Contracts”Intellectual Property"), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all All Permits required solely in connection with the Business Intellectual Property in effect as of the Asset Selling SubsidiariesClosing Date, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including extent such Permits are transferable (the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;"Acquired Permits"); and
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating All rights to the Liquid Finishing Businessname "Insituform", to the extent transferable;
(h) "Insituform East", "MidSouth" and "insitu" and all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemesderivatives thereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Insituform East Inc), Asset Purchase Agreement (Cerbco Inc)
Acquired Assets. On The transfer, sale, conveyance and assignment of the terms Acquired Assets shall be effectuated by the execution and subject delivery at the Closing by Buyer and Seller of one or more bills of sale and one or more patent assignment documents (including a patent assignment in the form attached as Exhibit A), together with any reasonably necessary declarations or other filings, and such other instruments of transfer, conveyance and assignment as may be required under applicable Law or as Buyer shall reasonably request to vest in Buyer good and valid title to the conditions of this AgreementAcquired Assets, at in form and substance reasonably acceptable to Seller and Buyer (all such documents that are executed and delivered by Seller in connection with the Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”).
(i) On the Closing Date, Seller shall instruct Seller’s patent counsel in writing that Buyer is the sole owner of the Acquired Patents and the Acquired Patent Files held by Seller’s patent counsel and that Seller’s patent counsel should henceforth take instructions in respect of the Acquired Patents and the Acquired Patent Files solely from Buyer.
(ii) As promptly as practicable, and in any event within [**], following the Closing, Seller shall deliver to Buyer, at such address as Buyer specifies in writing to Seller at Closing, copies of those portions of Seller’s and any of its Subsidiaries’ chemistry and biology laboratory notebooks that constitute part of the Acquired Notebooks, at Buyer’s expense for shipping and handling costs.
(iii) all of On or within [**] following the assetsClosing, propertiesSeller shall ship the Acquired Inventory to Buyer at such address as Buyer specifies in writing to Seller at Closing, rightsat Buyer’s expense for shipping and handling costs.
(iv) Except as set forth above regarding Acquired Patent Files and Acquired Notebooks, claimson or promptly after Closing, privilegesSeller shall also deliver to Buyer, at such address as Buyer specifies in writing to Seller at Closing, any electronic files and interests of the Asset Selling original documents (or, if no originals exist and Seller or its Subsidiaries of every kind and character and wherever locatedonly have copies thereof, such copies) that, in each case, relating to, used in, or arising out of are within the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title at Buyer’s expense for shipping and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemeshandling costs.
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreement, at on the ClosingClosing Date, Graco and Graco US Finishing Brands shallLandos shall sell to the Selling Entities , and shall cause Sellers to, sell, convey, which in their discretion subsequently may transfer and deliver assign to Purchasers, an entity or entities to be designated by Agent that is an Affiliate of JBR and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens the Stockholders (except for Permitted Liens), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary AgreementsBuyer Transferee”), and (iii) the Selling Entities shall purchase from Landos, all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling SubsidiariesLandos’ right, title and interest in and to the followingAcquired Compounds and all of the following assets (such assets, except to together with the extent constituting Acquired Compounds, the “Acquired Assets”), other than the Excluded Assets:Assets (defined below):
(a) all Intellectual Property Rights specifically relating to the Seller Owned Real PropertyAcquired Compounds, together with all buildingsincluding without limitation the Patent Rights, structures, installations, fixtures trademarks and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingcopyrights identified on Schedule B-1 annexed hereto (the “Acquired Intellectual Property Rights”);
(b) all existing drug substance and drug product inventory specifically relating to the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinAcquired Compounds, including real estate fixtureswithout limitation, leasehold improvementsraw materials, security active pharmaceutical ingredient, bulk product, work in process and other depositsfinished goods, common-area-maintenance refundslabeling and packaging owned or Controlled by Landos, adjustmentsregardless of where located, such inventory identified on Schedule B-2 annexed hereto (the “Acquired Drug Substance and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesAcquired Drug Product”);
(c) accounts receivable all INDs related to the Acquired Compounds, as and to the extent identified on Schedule B-3 annexed hereto (includingthe “Acquired INDs”);
(i) all FDA files and other correspondence (including emails) with the FDA produced since November 6, but not limited to2021 and (ii) all FDA files and other correspondence (including emails) with the FDA produced prior to November 6, all Extra-Liquid Finishing Business Intercompany Accounts Receivable)2021 that is in the possession and control of Landos, notes receivable, prepaid expenses, prepayments by customers, in each case of the foregoing clauses (i) and deposits held by any Asset Selling Subsidiary (ii) to the extent relating to the Liquid Finishing Business;
Acquired Compounds and the Acquired Drug Substance and Acquired Drug Product, identified on Schedule B-4 annexed hereto (d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller“Acquired FDA Files”), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements all manufacturing records and all Contracts of any Asset Selling Subsidiary study reports relating to the Liquid Finishing Business Acquired Compounds and the Acquired Drug Substance and Acquired Drug Product, as and to the extent, identified on Schedule B-5 annexed hereto (the “Acquired ContractsManufacturing Records and Study Reports”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;; and
(f) all Business Intellectual Property clinical and pre-clinical samples of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary Acquired Compounds and the Intellectual Property owned by any Asset Selling Subsidiary Acquired Drug Substance and Acquired Drug Product, as listed and to the extent identified on Schedule 1.2(a) or Schedule 1.4B-6 annexed hereto (the “Acquired Samples”);
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;Assumed Contracts; and
(h) all Books and Records produced since November 6, 2021 and all other Books and Records that to are in the possession and control of any Asset Selling Subsidiary Landos, as and to the extent relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); providedforegoing, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;including without limitation those:
(i) all claimspertaining to communications with the FDA, prepaymentscurrent licensees of any of the Acquired Compounds, prepaid expenses, refunds, causes clinical research organizations or other vendors involved in preclinical or clinical development or drug formulation or manufacturing of action, choses in action, rights of recovery, rights of set off, the Acquired Compounds or the Acquired Drug Substance and rights of recoupment Acquired Drug Product (including any such item relating to the payment a copy of Taxes) a list of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) key contact persons and 2.2(itheir contact information);
(jii) pertaining to material communications with potential business partners with respect to potential business alliances or similar business arrangements; or
(iii) consisting of all inventory databases and raw and processed data, studies, surveys, reports, specifications, methods, drawings and instructions, including those prepared by or for Landos and any Subsidiary or any of their customers (including finished productsin both hard copy and modifiable electronic copy form). For the avoidance of doubt, work (i) with respect to any Assumed Contract that contains any provision limiting, restricting or otherwise prohibiting any third party from disclosing or using information disclosed by L▇▇▇▇▇ or any Subsidiary, Landos shall not provide or otherwise disclose any information to the Selling Entities that is not included in processthe Acquired Assets and (ii) for purposes of clauses (d) and (h) above, raw materialsLandos shall only be required to deliver to the Selling Entities any items produced prior to November 6, supplies, spare parts, and packaging materials) 2021 that to the knowledge of Landos are in the possession and control of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesLandos even though such items are nonetheless Acquired Assets.
Appears in 1 contract
Sources: Asset Purchase and Redemption Agreement (Landos Biopharma, Inc.)
Acquired Assets. On the terms and subject to the terms and conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallBuyer shall purchase from Seller, and Seller shall cause Sellers to, sell, conveytransfer, transfer convey and deliver to PurchasersBuyer, all of the Acquired Assets at the Closing for the consideration specified in Section 2.5. The Acquired Assets include all of the right, title, and Purchaser Parent interest that Seller possesses in and US Purchaser shallto all of the assets, properties and shall cause Purchasers torights of Seller, purchase from Sellerswhether real, personal, tangible or intangible, of every kind, nature and description used by Seller or relating to the operation of the Business, free and clear of any Indebtedness, Liens (except for and obligations whatsoever other than the Assumed Liabilities and the Permitted Liens)Exceptions, all of including, without limitation, the following (all of items, but excluding therefrom the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) Excluded Assets (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries "Acquired Assets”). Without limiting the generality "):
(a) All of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ Seller's right, title and interest in and in, to or under the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildingsany lease thereof, structures, installations, fixtures and any other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingtherein;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machineryof Seller, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Businesswherever located, including, but not limited to, all toolingmachinery, moldsequipment (including, dies but not limited to, gaming devices and machines, ▇▇▇▇ validators and coin counters), Inventory, supplies, materials, tools, furniture, fixtures, computers, computer systems and software, websites, office equipment, vehicles and other equipment in which Graco US Finishing Brands has any rights or interests pursuant articles of personal property relating to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands the Business (as the assignee of ITW Parent and ITW US Seller"Tangible Property"), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(ec) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiariesgeneral intangibles, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed set forth on Schedule 1.2(a2.1(c);
(d) or the Assigned Contracts set forth on Schedule 1.42.1(d);
(e) all Accounts Receivable and all customer credits that remain outstanding as of the Closing Date;
(f) all deposits, prepayments and prepaid assets relating to the Business as of the Closing Date, other than as specifically referenced herein and subject to the prorations set forth in Section 2.10;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferableCasino Cash;
(h) all Books trademarks and Records of any Asset Selling Subsidiary trade names relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, including, but not limited to, all trade names, business names and trade dresses incorporating Mountain High Casino, including, without limitation, those trademark registrations or applications for trademark registrations set forth on Schedule 2.1(h), and all other intellectual property used in the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesBusiness;
(i) to the extent assignable by Seller to Buyer, all rights, claims, credits, suits, actions, demands, hearings, proceedings, judgments, orders, injunctions, writs, awards, decrees and rulings of any Governmental Entity relating to any Acquired Asset or any Assumed Liability, including any such items arising under guarantees, warranties, indemnities and similar rights in favor of Seller in respect of any Acquired Asset or Assumed Liability (collectively, "Seller Claims"), other than Seller Claims necessary to offset claims against Seller set forth on Schedule 2.1(i) and the Hyatt Claims;
(j) all books of account, ledgers, financial, accounting and Tax records and all general and personnel records, files, invoices, customers' and suppliers' lists, other distribution and mailing lists, price lists, reports, plans, advertising materials, catalogues, billing records, accounting information systems and software, sales and promotional literature, manuals, customer and supplier correspondence, plats, architectural plans, drawings, specifications and studies (the "Books and Records") relating to the Business, in all cases in any form or medium;
(k) all sundry items, including telephone numbers, key and lock combinations and passwords used by the Seller in the conduct of the Business;
(l) all goodwill generated by, associated with or attributable to the Business;
(m) all of Seller's rights in, to and under third-party manufacturers' warranties;
(n) the right to ▇▇▇▇ and receive payment for services performed but unbilled as of the Closing;
(o) all advertising, marketing and promotional materials, creative materials and all other printed, written or electronic materials;
(p) all franchises, approvals, permits, privileges, immunities, licenses (other than Gaming Licenses and liquor licenses), orders, registrations, certificates, variances, and similar rights obtained from any Governmental Entity which are necessary to the conduct of the Business;
(q) all right, title and interest of Seller in the benefits of all insurance covering the Acquired Assets and/or the Business;
(r) all indemnities and warranties relating to the Acquired Assets; and
(s) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, set-off and rights of recoupment (or other rights and claims of a similar nature in favor of Seller including any such item relating tax refunds and insurance refunds related to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesAcquired Assets.
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and Seller shall cause Sellers to, sell, conveyassign, transfer and deliver to PurchasersPurchaser, and Purchaser Parent shall purchase, acquire and US Purchaser shalltake assignment and delivery of, the following assets owned by Seller on the Closing Date (wherever located) which relate to, and shall cause Purchasers toare necessary for, purchase from Sellersthe continued operation of the Business, and all of Seller's right, title and interest therein and thereto on the Closing Date, free and clear of any Liens (except for Permitted Liens)all liens, all claims and encumbrances of the following whatever kind or nature, but not including those assets specifically excluded in Section 2.3 hereof (all of the following being assets to be sold, assigned, transferred and delivered to Purchaser hereunder shall be deemed included in the “term "Acquired Assets”): " as used herein):
(a) The following inventories: (i) all inventories of finished goods located at the equity ownership interests, beneficial or otherwise, Acquired Locations not including In Transit Inventory (which is covered in the entities listed on Schedule 2.1(i) subsection (collectively, the “Acquired Subsidiaries”iii)), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) merchandise located at the rights under such Contracts as are set forth on Schedule 2.1(ii) (Warehouse that constitutes Halloween repack for the “Acquired ITW Ancillary Agreements”)Locations, and (iii) all merchandise which either has been delivered to an Acquired Location [or the Warehouse] within the ten (10) days prior to the date hereof or is in transit to an Acquired Location or the Warehouse on the date hereof, in either case which has been paid for in full by Seller as identified on Schedule B hereto ("In Transit Inventory"); provided, however, that merchandise described in subsection (iii) shall only be included as "In Transit Inventory" if it is new party goods merchandise that was ordered and paid for by Seller within thirty (30) days prior to the date hereof (as more fully described in purchase orders provided by Seller and approved by Purchaser at or prior to the Closing), is every day merchandise generally saleable in the ordinary course within thirty (30) days of placement in a retail store and is of the assets, properties, rights, claims, privileges, type and interests of quality sold by Seller in the Asset Selling Subsidiaries of every kind and character and wherever locatedAcquired Locations, in each caseall cases contained in unopened shipping boxes accompanied by packing slips identifying the contents of such shipping boxes (collectively, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets "Inventory");
(the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ b) All right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon any and all easementsintellectual property or other general intangibles owned and utilized by Seller, rights of way including, without limitation, all proprietary and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party licensed software and all interests contract rights relating thereto, all trademarks and trade names and all goodwill associated therewith, all copyrights, all telephone numbers of any Asset Selling Subsidiary thereinSeller, including real estate fixturesall Headquarters and store telephone numbers at the Acquired Locations and any "800" or other toll free telephone numbers, leasehold improvements, security all domain rights and other deposits, common-area-maintenance refunds, adjustmentsinternet website(s), and other amounts now or hereafter payable to any Asset Selling Subsidiary under or the name and ▇▇▇▇ "Big Party" and the goodwill associated therewith, including without limitation the registered trademarks and applications therefor set forth in respect of such leasesSchedule 2.1(b) hereto;
(c) accounts receivable All proprietary information (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d"Proprietary Information") all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Businesspossession, custody and/or control of Seller, including, but not limited to, any and all toolingcustomer, moldssupplier, dies and/or mailing lists, as well as all other proprietary information in the possession, custody and/or control of Seller affiliates associated with the Business. All Proprietary Information shall be delivered to Purchaser in its present form;
(d) All (1) machinery, equipment, tools, owned vehicles, furniture, fixtures, furnishings, leasehold improvements, goods, and other tangible personal property owned by Seller which are used in the day-to-day operation or maintenance of the Business at (i) the Acquired Locations, and (ii) Seller's Headquarters, including in each case, but not limited to, any owned computer hardware and software and any store-related furniture, fixtures and/or equipment which are used in which Graco US Finishing Brands has any rights the day-to-day operation or interests pursuant to that certain Settlement Agreementmaintenance of the Business (collectively, dated as of October 23, 2008, by the "Fixtures and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US SellerEquipment"), 3M Company and 3M Innovative Properties (2) material and that certain Supply supplies (including packaging materials) located at the Acquired Locations and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative PropertiesHeadquarters;
(e) All licenses, permits, approvals, certificates of occupancy, authorizations, operating permits, registrations, plans and the 3M-Related Agreements and all Contracts of like applicable in any Asset Selling Subsidiary relating way to the Liquid Finishing Business at the Acquired Locations and Headquarters to the extent the same are transferable by Seller to Purchaser (the “Acquired Contracts”"Permits"), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) Any and all Business Intellectual Property rights of the Asset Selling Subsidiariesreturn, goodwill associated therewithoffsets, licenses counterclaims (other than claims described in Section 2.3(j) below), deductions and sublicenses granted and obtained unpaid allowances with respect thereto, to those vendors (a) from which the Inventory was acquired and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein (b) under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4Seller Purchase Orders which are included in Assumed Contracts;
(g) Except as described in Section 2.1(h) below, all Permits issued to accounts and accounts receivable, net of any and all returns, credits for damaged and/or defective items, disputed amounts, and co-op or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Businessother advertising allowances of Seller (collectively, to the extent transferable"Accounts");
(h) All sums owing to Seller by any affiliate or shareholder of Seller and all Books Claims arising under Section 547 of the Bankruptcy Code (collectively, "Recovery Claims");
(i) All prepaid assets and Records of any Asset Selling Subsidiary the Lease Deposits relating to the Liquid Finishing Business (except Acquired Locations and Headquarters that exist as of the date hereof or are created for the Books and Records identified as Excluded Assetsbenefit of Seller after the date hereof;
(j) All cash in each cash register located in each Acquired Location ("Store Cash Amount"); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot Purchase Price shall be segregated in a manner that preserves the usefulness of such information as it relates increased by an amount equal to the Liquid Finishing BusinessStore Cash Amount, provided, further, Seller and Purchaser agree that they shall each use their respective good faith best efforts to reconcile and determine the Asset Selling Subsidiaries amount of cash on hand in each of the referenced Acquired Assets shall include originals Locations as of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to within the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses time periods stated in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing BusinessSection 3.5 hereof;
(k) all goodwill of any Asset Selling Subsidiary To the extent relating to the Liquid Finishing Business;Business at the Acquired Locations or the Headquarters, all books, records, manuals, information, computer files and similar materials, except for those records identified in Section 2.3(c) hereof; and
(l) Any insurance recoveries relating to the Acquired Assets and any and all tangible personal property other assets that are necessary for the continued conduct of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, Business at the Assigned Transition Services Rights and Benefits Acquired Locations and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesHeadquarters.
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions of this Agreement, at At the Closing, Graco Seller is selling, assigning, transferring, conveying and Graco US Finishing Brands shalldelivering to Buyer, and shall cause Sellers toBuyer is purchasing, sellacquiring and accepting from Seller, conveySeller’s entire right, transfer title and deliver interest to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), substantially all of the following assets of Seller, whether tangible or intangible, real or personal (all of the following being the “Acquired Assets”): ), which include, without limitation, the following:
(iA) all of the equity ownership interests, beneficial or otherwise, in the entities contracts listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) attached Exhibit B (the “Acquired ITW Ancillary AgreementsAssigned Contracts”), and ;
(iiiB) all of Seller’s rights under the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, Lease relating to, used in, to or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title Leased Real Property listed and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Propertydescribed on Exhibit B, together with all buildingsImprovements thereon, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary Seller therein or thereunto pertaining;
(bC) the Real all Intellectual Property Leases to which any Asset Selling Subsidiary is a party and listed on Exhibit B, along with all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security other Intellectual Property and other depositsintangible personal property that has been used, common-area-maintenance refundsis used or is held for use in connection with the Business (together with the Seller Products and the Seller Software, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(cthe “Business IP”) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, thatwithout limitation: (1) where any such Books the rights to bring actions for past, present and Records contain information that relates future infringement, dilution, misappropriation or unauthorized use of the Business IP, injury to both goodwill associated with the Liquid Finishing Business and to any other business use of Graco or any of its Affiliates the Business IP, and such information cannot be segregated unfair competition or trade practices violations associated with the use of any of the Business IP in a manner that preserves any country or other geographic area in the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books world; and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where the rights to receive all proceeds from any of the foregoing, including licenses, royalties income, payments, claims, damages and proceeds of any such Books suit.
(D) the equipment, office equipment, tools, spare parts, accessories, furniture, test equipment and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain other tangible personal property and fixed assets owned by Seller as of the originals date of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesthis Agreement as listed on Exhibit B;
(iE) all rights of Seller under any warranty or guarantee by any manufacturer, supplier or other transferor of any of the Acquired Assets;
(F) all accounts, notes, and other receivables in favor of Seller arising from the operation of the Business and existing at the time of the Closing, together with all collateral security therefor and the proceeds thereof including without limitation those receivables listed on attached Exhibit B (collectively, the “Purchased Accounts Receivable”);
(G) all inventory (including raw materials, works in process and finished goods), packaging materials and supplies of Seller, including without limitation the inventory listed on attached Exhibit B (collectively, the “Inventory”);
(H) all rights of Seller under any franchises, approvals, permits, licenses, orders, registrations, certificates, variances, and similar rights obtained from governments and governmental agencies that are necessary for the Business and are identified on Exhibit B;
(I) all sales records, purchase records, customer lists, supplier lists, advertising, sales and promotional materials, production records, customer credit information, domain name usernames and passwords, source codes and object codes of any software, flow charts, programmer information, error reports, virus reports, customer complaints, internal memoranda and correspondence, and other records relating to the Acquired Assets or used in the Business; all Lease and Leased Real Property data relating to the Acquired Assets or used in the Business; all records regarding governmental examinations and clearances relating to the Acquired Assets or used in the Business; and all personnel records for any current or former employee of Seller;
(J) all rights to any proceeds due to Seller from the State of Connecticut or any other governmental authority relating to any outstanding tax credits (collectively, the “Tax Credits”) due to Seller;
(K) all goodwill and other general intangibles of Seller; and
(L) all rights of Seller under any claims, deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, off and rights of recoupment (including any such item items relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described ). Except as specifically provided in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefitsthis Agreement, the Assigned Transition Services Rights Acquired Assets are being transferred by Seller to Buyer at the Closing in accordance with this Agreement and Benefits free and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset clear of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesLiens.
Appears in 1 contract
Acquired Assets. On the terms and subject to the terms and conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallthe Buyer shall purchase from the Seller, and the Seller shall cause Sellers to, sell, conveytransfer, transfer assign, convey and deliver to Purchasersthe Buyer, all right, title and Purchaser Parent interest of the Seller in and US Purchaser shallto all of the tangible and intangible assets, business, goodwill and shall cause Purchasers rights of the Seller used in, arising out of, or related to, purchase from Sellersthe Business, other than the Excluded Assets (all such assets, business, goodwill and rights being purchased hereunder are collectively referred to as the “Acquired Assets”), as the same shall exist immediately prior to the Closing, free and clear of any all Liens (except for other than Permitted Liens), all of including, without limitation, the following (all of to the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, extent used in, or arising out of the Liquid Finishing Businessof, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoingor related to, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:Business):
(a) the Seller Owned Real Propertyraw materials, together with all buildingscomponents, structuresand supplies, installationswork-in-process, fixtures processed or finished goods and other improvements situated thereon items of inventory, and all easementspackaging, rights of way wrapping, shipping containers and other rightsparts, interests and appurtenances of wherever located, specifically including any Asset Selling Subsidiary therein inventory held by third parties for demonstration purposes or thereunto pertainingon consignment;
(b) all machinery, equipment, tooling, dies and molds (whether located at the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests facilities of any Asset Selling Subsidiary thereinthe Seller or at other locations), including real estate furniture, fixtures, leasehold improvements, security vehicles and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasestangible personal property listed on Schedule 1.1(b);
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as Intellectual Property set forth on Schedule 4.10(e1.1(c), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and or obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws Laws of all jurisdictions, including and all rights granted to the DeKups Intellectual Property owned by any Asset Selling Subsidiary and Buyer under the Intellectual Property owned by any Asset Selling Subsidiary as License Agreement (the “Ultrasonics Intellectual Property”), subject to the limitations set forth in Section 2.4;
(d) to the extent that the same are assignable, agreements, contracts, unfulfilled sales orders with customers listed on Schedule 1.2(a1.1(d), unfulfilled purchase orders entered into with suppliers listed on Schedule 1.1(d), licenses, commitments, plans, instruments, arrangements, understandings and proposals, documents and leases (whether of real or personal property) or (including, without limitation, any such agreements, contracts, licenses, commitments, documents and leases listed on Schedule 1.45.13), including all amendments and supplements thereto (collectively, the “Contracts”), subject to the limitations set forth in Section 2.4;
(ge) all Permits issued to payments, deposits (including, without limitation, customer deposits or held by any Asset Selling Subsidiary prepayments on unfulfilled sales orders) and relating to the Liquid Finishing Business, to the extent transferableprepaid expenses set forth on Schedule 1.1(e);
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(if) all claims, prepaymentschoses-in-action, prepaid expenseswarranties, refunds, causes of action, choses in action, rights of recovery, rights of set off, set-off and rights of recoupment set forth on Schedule 1.1(f);
(g) [intentionally omitted];
(h) to the extent that the same are assignable, all Permits, including any such item those Permits which are listed on Schedule 5.8;
(i) all rights to receive mail, email, faxes and other communications addressed to the Seller and relating to the payment of Taxes) of any Asset Selling Subsidiary relating Business (including communications from customers, suppliers, distributors, agents and others and payments with respect to the Liquid Finishing BusinessAcquired Assets), except for all of which shall be forwarded to the Excluded Assets described in Sections 2.2(h) and 2.2(i)Buyer;
(j) all inventory (including finished productsrecords, work in processfiles, raw documents and correspondence, lists, drawings, specifications, ▇▇▇▇ of materials, suppliesstudies, spare partsreports, advertising and promotional materials, and packaging other printed or written materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) , relating to the Liquid Finishing Business, including all electronic and printed copies of each of the foregoing;
(k) all goodwill of any Asset Selling Subsidiary relating rights to the Liquid Finishing Businessname “Misonix” granted by the Intellectual Property License Agreement;
(l) all tangible personal property of any Asset Selling Subsidiary the domain names listed on Schedule 2.1(l1.1(l);; and
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemesother Assets included on Schedule 1.1(m).
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of this Agreement, at the ClosingClosing provided for in Section 2.7, Graco and Graco US Finishing Brands shallin each case subject to Section 2.11, and Seller, on an as-is, where-is basis (except as otherwise expressly provided herein), shall cause Sellers to, sell, convey, assign, transfer and deliver to PurchasersPurchaser, and Purchaser Parent shall purchase and US Purchaser shall, and shall cause Purchasers to, purchase acquire from Sellers, free and clear of any Liens (except for Permitted Liens)Seller, all of the following (Seller’s right, title and interest in and to all of the following being property, assets and rights owned, leased or licensed by Seller relating to or used in the “Acquired Operations (other than the Excluded Assets”): (i) all ), of every kind, character and description, whether tangible, intangible, real, personal or mixed and wheresoever located, whether carried on the equity ownership interestsbooks of Seller or not carried on the books of Seller due to expense, beneficial full depreciation or otherwise, in as the entities listed same may exist on Schedule 2.1(i) the Closing Date (collectively, the “Acquired SubsidiariesAssets”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) expressly subject to the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Assumed Liabilities and Permitted Liens. Such Acquired ITW Ancillary Agreements”)Assets shall include, and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoingwithout limitation, the Asset Selling Subsidiaries Acquired Assets include all following (except to the extent that they are Excluded Assets):
(a) All of the Asset Selling Subsidiaries’ Seller’s right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingIKONOS Satellite System;
(b) All of Seller’s right, title and interest in and to all tangible personal property owned or leased by Seller or, subject to the Real Property Leases terms and conditions of the Government Contract to which any Asset Selling Subsidiary is such tangible personal property relates, furnished to Seller by a party Governmental Body relating to or used in the Operations, including, without limitation, all furniture, fixtures, computer equipment, furnishings, tools, machinery, spare parts, motor vehicles, leasehold improvements and equipment (collectively, the “Equipment”), and all interests manufacturers’ warranties associated with such items, including, without limitation, the list of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesEquipment set forth on Schedule 2.1(b);
(c) accounts receivable All of Seller’s right, title and interest in and to all inventory, work-in-process, components, finished goods, parts, supplies, raw materials and other items owned or leased by Seller relating to or used in the Operations (collectively, the “Inventory”), as well as all manufacturers’ warranties associated with such items, including, without limitation, the list of Inventory set forth on Schedule 2.1(c);
(d) All of Seller’s right, title and interest in and to all Intellectual Property and all IP Licenses (but in the case of Intellectual Property licensed to Seller by third parties, only such rights as Seller has under the IP Licenses in question), in both cases relating to or used in the Operations (collectively, the “Assigned IP Assets”), including, without limitation, the list of Assigned IP Assets set forth on Schedule 2.1(d);
(e) All of Seller’s right, title and interest in and to all claims, deposits, prepayments, warranty and guarantee rights, refunds and rebates and similar items relating to the Operations;
(f) All of Seller’s rights under, and interest in, all agreements, arrangements, contracts, notes, bonds, loans, instruments, mortgages, indentures, leases (including operating leases), conditional sales contracts, licenses (including, without limitation, all IP Licenses), franchises, understandings, commitments and other binding arrangements (collectively, “Contracts”) relating to the Operations to which Seller is a party or by or to which the Acquired Assets are bound or subject (collectively, the “Assigned Agreements”), including, without limitation, the list of Assigned Agreements set forth on Schedule 2.1(f);
(g) To the extent transferable under applicable Law, all of Seller’s right, title and interest in and to all permits, authorizations, licenses, or approvals issued by any Government Body held by Seller relating to or used in the Operations (the “Seller Permits”), including, without limitation, (i) the list of Material Permits set forth on Schedule 2.1(g)(i) (the “Material Permits”) and (ii) any other Seller Permits set forth on Schedule 2.1(g)(ii);
(h) All of Seller’s right, title and interest in and to all insurance policies (including, without limitation, the in-orbit insurance for the IKONOS Satellite) for the benefit of Seller in respect of the Operations or Acquired Assets (excluding the D&O insurance), and all rights of every nature and description under or arising out of such policies, including, without limitation, the list of such policies set forth on Schedule 2.1(h);
(i) All of Seller’s right, title and interest in and to all original or copies (in accordance with Section 2.2(a)) of all books, records, and other documents (whether on paper, computer diskette, tape or other storage media) used in the Operations (collectively, the “Books and Records”), including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable)satellite health status reports, notes receivabletax records, prepaid expensesproperty records, prepayments by customerspurchase and sales records, credit data, marketing, advertising and deposits held by any Asset Selling Subsidiary promotional materials, personnel files and payroll records (relating to the Liquid Finishing BusinessTransferred Employees), accounting records, financial reports, fixed asset lists, customer lists, customer records and information, supplier lists, parts lists, manuals, technical and repair data, correspondence, files and any similar items;
(dj) All of Seller’s right, title and interest in and to all tangible personal property rights, Claims and causes of action against third parties (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and toolsother than the Manager or members of the Seller) of any Asset Selling Subsidiary used in relating to the Liquid Finishing BusinessOperations, including, but not limited to, all toolingrights against suppliers under warranties covering any of the Acquired Assets, moldsincluding, dies without limitation, those rights, Claims and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as causes of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as action against third parties set forth on Schedule 4.10(e2.1(j), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(fk) All of Seller’s right, title and interest in and to all Business Intellectual Property of stationery, forms, labels, shipping materials, brochures, art work, photographs, advertising materials and any similar items relating to or used in the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4Operations;
(gl) All of Seller’s right, title and interest in and to its library of archived geo-spatial imagery, wherever located and regardless of the media on which it is stored;
(m) All of Seller’s right, title and interest in and to all Permits issued Owned Real Property and Leased Real Property, including, without limitation, the list of such real properties set forth in Schedule 2.1(m), together with any and all easements for ingress, egress and utilities which are attendant to or held by any Asset Selling Subsidiary such property and all other appurtenances thereto;
(n) All of Seller’s right, title and interest in and to all accounts receivable of Seller relating to the Liquid Finishing Business, Operations as of the Closing Date (including rights to payment for services that have been performed but have not been billed prior to the extent transferableClosing Date);
(ho) All of Seller’s right, title and interest in and to all Books goodwill associated with the Operations;
(p) All of Seller’s right, title and Records of any Asset Selling Subsidiary relating to interest in the Liquid Finishing Business bank accounts set forth on Schedule 2.1(p) (except for the Books and Records identified as Excluded Assets“Transferred Bank Accounts”); provided, however, that: (1) where any such Books and Records contain information provided that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary Seller shall be entitled to retain copies one of the Transferred Bank Accounts upon written notice to the Purchaser prior to the Closing;
(q) All cash on hand, cash equivalents, bank accounts and short-term instruments (including restricted cash in respect of the items set forth in Section 2.1(e)) and all similar types of investments, such Books as certificates of deposit, treasury bills and Recordsother marketable securities, except that following as of the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of (whether or not such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2cash is held in a Transferred Bank Account) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(or) All of Seller’s right, title and interest in and under the Plans and any associated trust, insurance and service agreements or contracts entered into, and all assets held books, records, files, documents and papers created, filed or maintained, in connection with respect to the Assumed Benefit Plans/Schemes.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of this Agreementcontained herein, Seller shall sell and transfer to Buyer, and Buyer shall purchase and acquire from Seller, at the ClosingClosing (as hereinafter defined), Graco all of the properties and Graco US Finishing Brands shall, and shall cause Sellers to, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellersassets of Seller used in the operation of the Business as of the Closing (the "Acquired Assets") other than the Excluded Assets (as hereinafter defined), free and clear of all security interests, liens, restrictions, claims, encumbrances or charges of any Liens kind (except for "Encumbrances") other than Permitted LiensEncumbrances (as hereinafter defined), all of including without limitation, the following following:
(all of the following being the “Acquired Assets”): a) All tangible personal property (isuch as machinery, equipment, inventories, furniture and motor vehicles) all of the equity ownership interestsowned by Seller;
(b) All accounts, beneficial or otherwise, notes and other receivables owned by Seller (other than those included in the entities listed on definition of Excluded Assets);
(c) All claims, deposits, prepayments, refunds, causes of action, choses in action, rights of recovery, rights of set off and rights of recoupment owned by Seller (other than those included in the definition of Excluded Assets);
(d) All rights of Seller in, to and under all leases of personal property entered into by Seller in connection with the Business prior to the date hereof as set forth in Schedule 2.1(i) 1.1 hereto and any other leases which Buyer shall have agreed in writing to assume as provided in Section 1.4 of this Agreement (collectively, the “Acquired Subsidiaries”"Leases"), each ;
(e) All of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ Seller's right, title and interest in and to the followingname "Hell▇▇▇ ▇▇▇munications" and related logos, except the trade names related to the extent constituting Excluded Assets:
(a) the Seller Owned Real PropertyBusiness, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way customer lists and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating trade secrets related to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all All rights of Seller in, to and under those contracts, commitments, purchase and sale orders, work orders, agreements and arrangements entered into by Seller in connection with the Business Intellectual Property prior to the date hereof as described in Schedule 1.1 hereto and any other contracts which Buyer shall have agreed in writing to assume as provided in Section 1.4 of this Agreement (collectively, the "Contracts");
(g) All franchises, approvals, permits, licenses, orders, registrations, certificates, variances and similar rights obtained from governments and governmental agencies in which Seller has any right, title or interest;
(h) All books and records of Seller related specifically to the Business, including without limitation, property records, current payroll records, accounting records, supplier lists, parts lists, manuals, files, and any similar items related to the Acquired Assets or the conduct of the Asset Selling SubsidiariesBusiness;
(i) All of Seller's intellectual property, the goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictionsjurisdictions (collectively, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets"Proprietary Rights"); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);and
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, Seller's cash and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemescash equivalents.
Appears in 1 contract
Sources: Asset Purchase Agreement (Multi Link Telecommunications Inc)
Acquired Assets. On Subject to the terms and subject conditions hereof, the Company and the Associated Subsidiaries agree to sell to CNCO, and the conditions of this AgreementInvestor agrees to cause CNCO to purchase from the Company and the Associated Subsidiaries, at the Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens Closing (except for Permitted Liens), as defined in Section 2.1) all of the following (all right, title and interest of the following being Company and the “Acquired Associated Subsidiaries in and to the Business and all properties, assets and rights of every nature, kind and description of the Company and the Associated Subsidiaries used or held for use primarily in connection with the Business wherever located (collectively, other than the Retained Assets (as defined in Section 1.1(b) hereof), the "Assets”): "), including the following:
(i) all of the equity ownership interestsrights of the Company or any Associated Subsidiary to prepare, beneficial produce, publish, print, sell and/or distribute, as the case may be, the community newspapers and other publications which constitute the Business, together with the goodwill of or otherwise, relating to the Business;
(ii) all of the real property owned by the Company or any Associated Subsidiary and primarily used in the entities operation of the Business (the "Owned Real Property"), which Owned Real Property is listed on Schedule 2.1(i) 3.18 to the Disclosure Schedule (collectively, the “Acquired Subsidiaries”as defined in Section 3.1(a), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and all of the buildings, fixtures and improvements (the "Improvements") located in, on and under the Owned Real Property;
(iii) all of the assetsrights of the Company or any Associated Subsidiary in any real property leased or subleased by the Company or the Associated Subsidiaries and used primarily in the operation of the Business (the "Leased Real Property"), propertieswhich Leased Real Property is listed on Schedule 3.19 to the Disclosure Schedule, and all of the Improvements located in, on and under the Leased Real Property to the extent provided in the lease or sublease;
(iv) all of the materials, raw materials (including paper), supplies, work in progress and other inventory owned by the Company or any Associated Subsidiary and to the extent used or held for use in the operation of the Business;
(v) all rights of the Company or any Associated Subsidiary to fixed and other tangible personal property, whether owned or leased, including furniture, equipment, computers and related items, fixtures, machinery and tools owned by the Company or any Associated Subsidiary and primarily used in the operation of the Business;
(vi) all rights, claimssubscription rights, privilegesobligations and benefits of contracts, and interests licenses (whether the Company or any Associated Subsidiary is a licensee or licensor) or arrangements of the Asset Selling Subsidiaries Company or any Associated Subsidiary primarily relating to the Business and the Assets (collectively, the "Assumed Contracts"), including the items listed on Schedules 3.10(a) through (j) of every kind the Disclosure Schedule;
(vii) all files, books and character records of the Company or any Associated Subsidiary dating back at least five full fiscal years from the date of the Closing primarily relating to the Business (but not minute books and wherever locatedcorporate governance records of the Company and the Associated Subsidiaries) which are not physically located at the Owned Real Property or the Leased Real Property and all files, books and records of the Business which are physically located at the Owned Real Property or the Leased Real Property, including financial statements and records, advertising space reservations, advertising insertion orders, promotional materials, all available records of current and former advertisers in the newspapers and other publications which comprise the Business or relating to the Business; provided that the Company shall retain copies of all such files, books and records;
(viii) all credits, prepaid costs and expenses, deposits and retentions held by third parties under leases, licenses, contracts and other arrangements, in each casecase to the extent relating to the Business;
(ix) all current assets (except for cash and cash equivalents), but specifically including accounts receivable; provided that following the Effective Date (as defined in Section 2.1) CNCO shall have the right to assign certain accounts receivable to the Company in accordance with the terms of Section 1.3(g) of this Agreement;
(x) all subscription, distribution, circulation and mailing lists relating primarily to the Business and all records and data relating to such lists;
(xi) any available editorial and photographic morgues and any available back issues of the newspapers and other publications which comprise the Business;
(xii) all registered United States and foreign patents, trademarks, service marks, trade names, mastheads, copyrights and applications therefore set forth on Schedule 3.9 of the Disclosure Schedule (including rights to sue ▇▇▇ and remedies against present and future infringements thereof and rights of priority and protection of interests) and the goodwill and going concern value related thereto;
(xiii) all licenses and permits of any government or state (or any subdivision thereof), whether domestic or foreign, or any agency, authority, bureau, commission, department or similar body or instrumentality thereof, or any governmental court or tribunal, federal, state and local ("Government Authority"), to the extent they are transferable, relating toprimarily to the Business or the Assets;
(xiv) all guaranties, used inwarranties, or arising out indemnities and similar rights in favor of the Liquid Finishing Company or any Associated Subsidiary to the extent related to the Assets or the Business; and
(xv) all rights of the Company or any Associated Subsidiary under any provision or covenant of any contract, agreement or understanding in favor of the Company or any Associated Subsidiary or their Affiliates to the extent relating to the Business limiting the ability of any party to sell any products or services, engage in any line of business or compete with or to obtain products or services from any person and any causes of action, lawsuits, claims and demands available to the Company or any Associated Subsidiary in respect of the foregoing whether arising before or after the Closing. The Assets shall be transferred free and clear of all liens, easements, licenses, possessory rights, sales contracts, building and use restrictions, reservations and limitations, encumbrances, security interests, charges, pledges, mortgages, deeds of trust, deed to secure debt, liabilities, debts, options or, to the best knowledge of the Company and the Associated Subsidiaries, any other adverse claims, restrictions or third party rights of any kind and nature whatsoever (the "Encumbrances"), except for the Excluded Assets following (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if "Permitted Encumbrances"): (i) such non-disclosure constitutes a misrepresentation under Section 4.11 liens for current Taxes not yet due and payable, (ii) the assumption encumbrances disclosed on Schedule 3.8(a) of such Contract the Disclosure Schedule, (iii) mechanics', carriers', workmen's, repairmen's or other like liens arising or incurred in the ordinary course of business, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business, and which are routinely and regularly extinguished by any Purchaser wouldpayment of the charges to which they relate and which do not, individually or in such Purchaser’s reasonable determinationthe aggregate, materially impair the continued use and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property operation of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights assets to protection of interests therein under which they relate in the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, taken as a whole, as presently conducted or (iv) other imperfections of title or encumbrances, if any, which do not, individually or in the aggregate, materially impair the continued use and operation of the assets to which they relate in the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Recordstaken as a whole, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemesas presently conducted.
Appears in 1 contract
Sources: Asset Purchase Agreement (Liberty Group Management Services Inc)
Acquired Assets. On Upon the terms and subject to the conditions of this Agreement, at the Closing, Graco Pathmark and Graco US Finishing Brands shallPlainbridge, and as applicable, shall cause Sellers tosell, selltransfer, assign, convey, transfer and deliver to Purchasers (as designated by Purchasers), and Purchaser Parent and US Purchaser shallPurchasers shall purchase, accept, and shall cause Purchasers toacquire from Pathmark and Plainbridge, purchase from Sellersas applicable, free and clear of any Liens (except for Permitted and all Liens), all of the following (all right, title and interest of Pathmark and Plainbridge, as applicable, in and to the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) assets (collectively, the “"Acquired Subsidiaries”Assets"), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets assets listed on Schedule 2.1 hereto (the “Asset Selling Subsidiaries Acquired "Excluded Assets”"):
(a) Readily Saleable Merchandise remaining on the Closing Date after Pathmark has reduced the inventory level to a level as low as reasonably practicable while maintaining adequate service levels, which shall not exceed (including "price break" inventory) 2,825,000 cases collectively at the Grocery Facilities and at the Dayton Facility (collectively, the "Transferred Inventory"), but Pathmark and Plainbridge will have no "external price-break" inventory;
(b) All of Pathmark's rights and benefits under the Assumed Contracts and the Assumed Collective Bargaining Agreements;
(c) All machinery, equipment (including, without limitation, all computers located in or at the Grocery Facilities), office materials, tools, pallets, spare parts, supplies and all other tangible personal property located in and at the Grocery Facilities or otherwise primarily benefitting the Grocery Facilities, and the leasehold improvements currently in, on, or attached to the Grocery Facilities including, without limitation, the equipment itemized on Exhibit B hereto and the racks at or attached to each of the Grocery Facilities and all parking lot improvements (collectively, the "Grocery Assets"). Without limiting A list of all leasehold improvements at the generality of Grocery Facilities is attached hereto as Exhibit B;
(d) All machinery, equipment (including, without limitation, all computers located in or at the foregoingDayton Facility), office materials, tools, pallets, spare parts, supplies and all other tangible personal property located in and at the Dayton Facility or otherwise primarily benefitting the Dayton Facility, and the leasehold improvements currently in, on or attached to the Dayton Facility including, without limitation, the Asset Selling Subsidiaries Acquired Assets include equipment itemized on Exhibit B hereto and the racks at or attached to the Dayton Facility and all parking lot improvements (collectively, the "Frozen Food Assets"). A list of all leasehold improvements at the Asset Selling Subsidiaries’ Dayton Facility is attached hereto as Exhibit B;
(e) All of Plainbridge's right, title and interest in and to the followingcertain real property more particularly described in Exhibit D hereto located in Woodbridge, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real PropertyMiddlesex County, together with New Jersey, including all buildingsstructures and improvements thereon, structures, installations, fixtures and other improvements situated thereon and all easements, rights-of-way, privileges, zoning and development rights of way and other rightsrights and benefits, interests if any, which are appurtenant to such real property, and appurtenances all right, title and interest of Plainbridge in and to any gaps, strips or gores adjoining or adjacent to such real property and in and to any land lying in the bed of any Asset Selling Subsidiary therein street, road or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests avenue, open or proposed, in front of any Asset Selling Subsidiary therein, including or adjoining such real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller"Woodbridge Facility"), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;; and
(f) all Business Intellectual Property All of the Asset Selling SubsidiariesPathmark's right, goodwill associated therewithtitle and interest (i) as tenant under (A) that certain Lease dated June 15, licenses and sublicenses granted and obtained with respect thereto1994 by Dayton Properties Associates, as landlord, and rights thereunderPathmark, remedies against infringements thereofas tenant, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing BusinessDayton Facility, as amended by First Amendment to Lease dated January 16, 1995 (the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets"Dayton Facility Lease"); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of TaxesB) of any Asset Selling Subsidiary relating to the Liquid Finishing Businessthat certain Four Party Agreement among Dayton Properties Associates, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished productsDKM Properties Corp., work in process, raw materials, supplies, spare partsDayton Property Owners Association, and packaging materialsPathmark dated June 15, 1994; (ii) in as tenant under that certain Net Lease dated March 11, 1996 by ▇▇▇▇▇▇▇▇ ▇▇▇▇ Associates, as landlord, and Pathmark, as tenant (the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary"Brunswick Facility Lease") relating to the Liquid Finishing Business;
Brunswick Facility; and (kiii) all goodwill as tenant under that certain Agreement of any Asset Selling Subsidiary relating Lease dated October 1, 1983 by ▇▇▇▇ ▇▇▇▇ Corporation, as landlord, and Pathmark (formerly known as Supermarkets General Corporation), as tenant, as amended by Renewal Agreement and Lease Amendment dated April 30, 1993, (the "Banana Ripening Facility Lease"; together with the Dayton Facility Lease, the Brunswick Facility Lease and the Woodbridge Facility, collectively referred to herein as the "Acquired Facilities"). Notwithstanding anything to the Liquid Finishing Business;
(l) all tangible personal property contrary in this Agreement, Plainbridge's sale of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Woodbridge Facility and Pathmark's assignment of its interests under the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect Leases to CSWG will be made subject to the Assumed Benefit Plans/SchemesPermitted Encumbrances.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of this Agreement, at on the ClosingClosing Date, Graco and Graco US Finishing Brands Seller shall, and shall cause Sellers the applicable Selling Subsidiaries to, sell, convey, transfer and deliver Transfer to PurchasersPurchaser, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from SellersSeller and the applicable Selling Subsidiaries, free and clear of any Liens (except for other than Permitted Liens), all right, title and interest of Seller and such Selling Subsidiaries in and to all of the following assets, properties and rights of every kind and nature, whether real, personal or mixed, tangible or intangible (all of including goodwill), wherever located and whether now existing or hereafter acquired (other than the following being Excluded Assets), which relate to, or are used or held for use in connection with, the Crimson Business (collectively, the “Acquired Assets”): ) including, without limitation, the following:
(ia) all Acquired Inventory;
(b) all Acquired A/R;
(c) all Acquired Contracts;
(d) all Acquired IP;
(e) all Acquired Books and Records;
(f) all Acquired Permits;
(g) all of the equity ownership interests, beneficial or otherwiseand appurtenant rights, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property Joint Venture owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferableSeller;
(h) all Books customer and Records of any Asset Selling Subsidiary relating supplier lists pertaining to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Crimson Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesincluding those set forth on Schedule 2.1(h);
(i) all claims, prepayments, prepaid expenses, refundscredits, causes of action, choses in action, rights of recovery, rights of set off, deposits (other than customer deposits) and rights of recoupment (including any such item relating advance payments to the payment of Taxes) of any Asset Selling Subsidiary relating extent related to the Liquid Finishing Crimson Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(iincluding those set forth on Schedule 2.1(i);
(j) all inventory furniture, fixtures, equipment (including finished productsoffice, work computer and telephone equipment), machinery, tools, dies, molds and all other tangible personal property located at any Leased Real Property, at the facility of any Selling Company or any Affiliate of a Selling Company, or at any vendor, in process, raw materials, supplies, spare parts, each case that are owned by a Selling Company and packaging materials) that are used or held for use in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Crimson Business, including, without limitation, such assets set forth on Schedule 2.1(j);
(k) all goodwill of any Asset trucks, tractors, trailers, railcars or other vehicles that are owned by the Selling Subsidiary relating to Companies and used in the Liquid Finishing Crimson Business, including, without limitation, such assets listed on Schedule 2.1(k);
(l) all tangible personal property catalogs, sales promotion literature and advertising materials relating to the Crimson Business; provided, however, that Seller should be entitled to retain copies of any Asset such materials that also relate to the Excluded Assets or any businesses of Selling Subsidiary listed on Schedule 2.1(l)Companies or their Affiliates other than the Crimson Business;
(m) all of the Assigned Section 6.2(g) Rights Selling Companies and Benefits, their respective Affiliates’ goodwill related to the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and BenefitsCrimson Business;
(n) to the extent assignable, all rights under warranties, indemnities and all similar rights against third parties to the extent related to any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; andthe Acquired Assets;
(o) all assets held with respect rights to any claims, suits, actions proceedings or investigations at law or in equity of any nature available to or being pursued by such Selling Company or its Affiliates to the extent related to the Crimson Business, the Acquired Assets or the Assumed Benefit Plans/SchemesLiabilities, whether arising by way of counterclaim or otherwise; and
(p) all insurance benefits, including rights and proceeds, arising from or relating to the Crimson Business, the Acquired Assets or the Assumed Liabilities.
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions of set forth in this Agreement, Agreement (i) at the USA Closing, Graco and Graco US Finishing Brands USA Seller shall, in accordance with the Bankruptcy Sale Order and pursuant to sections 363 and 365 of the Bankruptcy Code, assume and assign to USA Buyer, and USA Buyer shall cause Sellers toacquire, (A) those Stores set forth and listed on Part 1 of Annex A hereto (the "USA Acquired Stores"), and (B) all of USA Seller's rights, title, and interest in each of its executory contracts, assets, properties, operations and businesses and other rights and privileges directly used in connection with or related to the USA Acquired Stores and, to the extent set forth below in subparagraphs 2.1.1 through 2.1.14 , the USA Remaining Stores (subparagraphs (A) and (B), collectively, the "USA Acquired Assets"), and (ii) at the Canadian Closing, Canadian Seller shall, in accordance with the Canadian Sale Order and pursuant to Canadian Insolvency Laws, sell, convey, assign, transfer and deliver to PurchasersCanadian Buyer, and Purchaser Parent Canadian Buyer shall acquire, (A) those Stores set forth and US Purchaser shalllisted on Part 2 of Annex A hereto (the "Canadian Acquired Stores"), and shall cause Purchasers to(B) all of Canadian Seller's rights, purchase from Sellerstitle, free and clear interest in each of any Liens its executory contracts, assets, properties, operations and businesses and other rights and privileges directly used in connection with or related to the Canadian Acquired Stores (except for Permitted Lienssubparagraphs (A) and (B) collectively, the "Canadian Acquired Assets," and together with the USA Acquired Assets and the Headquarters Assets, collectively, the "Acquired Assets"), including Seller's right, title and interest in:
2.1.1 the Acquired Leases (and no other real property leases, except as may be otherwise provided in the Designation Rights Agreement);
2.1.2 all furniture, fixtures, equipment and other tangible personal property in all Stores (other than the Canadian Retained Stores), including machinery, computers, cash registers, tools, parts, supplies and motor vehicles, subject to Permitted Encumbrances;
2.1.3 all (i) USA Inventory in existence as of the USA Closing Date (the "USA Acquired Inventory") and (ii) Canadian Inventory, other than any Canadian Retained Stores Inventory, in existence as of the Canadian Closing Date (the "Canadian Acquired Inventory");
2.1.4 all (i) Disney Dollars and Disney Theme Park Passports held for sale by Seller as of the USA Closing Date in or with respect to the Stores other than the Canadian Retained Stores, the Canadian Acquired Stores and the Canadian Warehouse (the "USA Disney Dollars and Tickets") and (ii) the Disney Dollars and Disney Theme Park Passports held for sale by Seller as of the Canadian Closing Date in or with respect to the Canadian Acquired Stores and the Canadian Warehouse (the "Canadian Disney Dollars and Tickets");
2.1.5 all (i) USA Supplies in existence as of the USA Closing Date (the "USA Acquired Supplies") and (ii) Canadian Supplies, other than any Canadian Retained Stores Supplies, in existence as of the Canadian Closing Date (the "Canadian Acquired Supplies");
2.1.6 all Contracts listed on Annex H, which annex will be prepared by Buyer after the date of this Agreement and will be attached hereto (the "Acquired Agreements") (provided that Seller shall have the right to maintain copies thereof to the extent required by Law or Seller's existing recordkeeping policies), but no other Contracts (other than the Acquired Leases and the Acquired Car Leases);
2.1.7 all Permits, and all pending applications therefor or renewals thereof, in each case to the extent transferable, relating to the use or operation of all of the following Stores (other than the Canadian Retained Stores) and the Acquired Assets;
2.1.8 all data, manuals, files, computer tapes, databases, correspondence, lists and other books and records for the Entire Disney Store Business to the extent not related exclusively to TCP or its Affiliates other than Seller, including client and customer lists and records, price lists or pricing structures, research and development reports and records, production reports and records, product designs and drawings, operating guides and manuals, financial and accounting records, plans, budgets, forecasts and projections, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and records but, with respect to personnel records, only length of service information and not other personnel records (the "Business Records") (provided that Seller shall have the right to maintain copies thereof to the extent required by law or Seller's existing recordkeeping policies and (i) to the extent any such materials (other than client and customer lists and records) are required for the operation of TCP's business (other than the Business) and (ii) in the case of a Bifurcated Closing, to the extent such materials are required for the operation of the following being Stores located in Canada until the “Canadian Final Closure Date);
2.1.9 all intellectual, proprietary and intangible rights and property related to the Entire Disney Store Business, in any and all media, anywhere in the world, including, (i) going concern value, (ii) goodwill, (iii) telephone, telecopy, internet and e-mail addresses, listings websites and domain names, (iv) names, trade names, trademarks, service marks, trade dress, logos, slogans, symbols and emblems, in each case including all registrations, applications for registration and common law rights and all goodwill associated therewith, (v) all patents and patent applications, (vi) all computer software (including source code, object code, user interfaces, templates, menus and related technology) that is used primarily in connection with the Entire Disney Store Business and not primarily used by TCP or any Affiliate thereof in connection with any business other than the Entire Disney Store Business (and specifically excluding the SAS/Market Max software) (the "Business Software"), subject to obtaining, at no cost to Seller or its Affiliates, any required third party Consent and provided that Buyer acknowledges that a material amount of the Business Software may be subject to "umbrella" license agreements granted to TCP or TCP Services Co. for itself and its Affiliates, such that Seller is entitled to use such Business Software in the Entire Disney Store Business only in its capacity as an Affiliate of TCP or TCP Services Co., and, in such situations, although the parties will use good faith efforts (without incurring material fees or expenses to the licensor) to transfer rights in such Business Software to Buyer, if such transfer is not possible through such efforts, then such Business Software will not be transferred to Buyer but Buyer's needs for such Business Software will be addressed in a commercially reasonable and mutually approved manner through the Transitional Services Agreement until such time as Buyer is able to make arrangements for replacement software, (vii) all works of authorship (whether or not copyrightable) and all registered and unregistered copyrights (whether in published or unpublished works), excluding copyrights in software that is not Business Software, (viii) all ideas, inventions, know-how, trade secrets, confidential or proprietary information, techniques, processes, plans, designs, concepts, works in progress, drawings and blue prints, (ix) moral rights and rights of attribution and integrity, (x) all licenses and assignments of any kind relating to any of the foregoing, and (xi) all documentation and tangible embodiments of or relating to any of the foregoing, in each case relating to the operation of the Entire Disney Store Business;
2.1.10 the leases for cars that are leased by Seller and set forth on Annex I, which annex will be prepared by Buyer after the date of this Agreement and will be attached hereto (the "Acquired Assets”): Car Leases"), but no other leases for cars;
2.1.11 (i) all cash-on-hand in the USA Acquired Stores and USA Remaining Stores as of the equity ownership interestsUSA Closing (the "USA Cash-On-Hand") and (ii) all cash-on-hand in the Canadian Acquired Stores as of the Canadian Closing ("Canadian Cash-On-Hand");
2.1.12 all claims (other than Tax claims) against third parties (other than TCP or its Affiliates) from or related to the use or operation of the Acquired Assets;
2.1.13 subject to Section 6.7, beneficial all rights relating to deposits, prepaid rent and other prepaid expenses, claims for refunds and rights to offset in respect thereof related to the Acquired Assets; and
2.1.14 the Internet Store (as defined in the License Agreement) (which is currently operated by certain Affiliates of TDSF and currently occupies a portion of the website owned by certain Affiliates of TDSF located at w▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) and the properties, assets, businesses and operations relating thereto, but specifically excluding any Warehouses. Notwithstanding the foregoing:
(i) If, at any time prior to the Applicable Closing, with respect to any Store set forth on the Acquired Stores Schedule, Buyer discovers (through its due diligence investigation, Landlord negotiations or otherwise) that: (A) such Store is no longer operating in the ordinary course of business, consistent with the past practice of such Store, other than as a result of the failure to order or replenish inventory, (B) there is, prior to the Applicable Petition Date, either (x) outstanding unpaid rent under the Lease relating to such Store that is forty-five (45) days or more past due or (y) outstanding unpaid rent or other unpaid occupancy-related expenses or other amounts due (other than year-end adjustments) under the Lease relating to such Store that are in excess of an aggregate of $30,000 that would be required to be assumed or cured by Buyer if the Store were an Acquired Store, (C) one-third (1/3) or more of the management employees for such Store have resigned, been terminated or been reassigned to another position (whether within such Store, to another Store or otherwise) and have not been replaced by qualified individuals in accordance with the Seller's past and customary management employee hiring and replacement procedures, (D) there are outstanding remodel obligations for such Store that have been agreed to with the Landlord thereof and/or other outstanding repair, maintenance or remodel requirements or obligations for such Store that, in the entities listed on Schedule 2.1(i) aggregate, exceed One Hundred Thousand Dollars (collectively, the “Acquired Subsidiaries”$100,000), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (iiE) the rights under sales for such Contracts Store for the March 2008 retail month have decreased as compared with the sales for such Store for the January 2008 retail month, provided that this subparagraph (E) shall not apply to any Store that was opened after October 31, 2007, any Store for which a remodel was completed on or after October 31, 2007, or any Store that is undergoing a substantial remodel as of the Applicable Petition Date, (F) the actual sales or operating income for such Store for the March 2008 retail month are set forth less than Seller's forecast for such Store for the March 2008 retail month by fifteen percent (15%) or more, provided that this subparagraph (F) shall not apply to any Store that was opened after October 31, 2007, any Store for which a remodel was completed on or after October 31, 2007, or any Store that is undergoing a substantial remodel as of the Applicable Petition Date, and/or (G) either the book value of the inventory in such Store, or the number of units of inventory in such Store, measured as of the date that is three (3) Business Days prior to the Applicable Closing Date, has decreased by more than thirty percent (30%) from the book value of the inventory or the number of units of inventory in such Store, respectively, measured as of March 1, 2008, then, Buyer may, at any time prior to the Applicable Closing, at its option and in its sole discretion, determine that such Store shall be deleted from the Acquired Stores Schedule. If Buyer determines that any Store shall be deleted from the Acquired Stores Schedule, then (I) Buyer shall provide written notice of such deletion to Seller, (II) the Acquired Stores Schedule 2.1(iishall, upon such notice, be automatically amended to delete any such Store therefrom and (III) such Store shall not be included in the Acquired Assets, shall not constitute an Acquired Store and the Lease therefor shall not constitute an Acquired Lease, and instead such Store shall be included in the USA Remaining Stores (if such Store is located in the “Acquired ITW Ancillary Agreements”United States) or the Canadian Retained Stores (if such Store is located in Canada), and the Lease therefor shall constitute a USA Remaining Lease (iii) all of if such Lease is for a Store located in the assetsUnited States), properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever locatedor a Canadian Retained Lease (if such Lease is for a Store located in Canada), in each case, relating to, used in, or arising out for all purposes of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:this Agreement.
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) At any time prior to the assumption of such Contract by any Purchaser wouldApplicable Closing, Buyer may elect, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives its sole discretion by providing written notice to Graco that it deems Seller, to add any Store to the Acquired Stores Schedule, in which event the Acquired Stores Schedule shall, upon such Contract notice, be automatically amended to add any such Store thereto and such Store shall no longer constitute a USA Remaining Store or a Canadian Retained Store, as applicable, and the Lease therefor shall no longer constitute a USA Remaining Lease or a Canadian Retained Lease, as applicable, and instead such Store shall be included in the Acquired Stores, and the Lease therefor shall constitute an Acquired Contract;
(f) Lease, in each case, for all Business Intellectual Property purposes of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets)this Agreement; provided, however, that: , in addition to Buyer's Store removal rights under the preceding subparagraph (1i), if any addition of a Store under this subparagraph (ii) where results in there being more than Two Hundred Twenty (220) Acquired Stores on the Acquired Stores Schedule, then Buyer may, from time to time, prior to the Applicable Closing, in its sole discretion and without specifying any reason (including not specifying any reason set forth in the preceding subparagraph (i)), by providing written notice to Seller, remove any one or more of the Acquired Stores from the Acquired Stores Schedule up to a number of removed Acquired Stores that would result in the total number of Acquired Stores not exceeding Two Hundred Twenty (220), in which event the Acquired Stores Schedule shall, upon such notice, be automatically amended to remove such Store or Stores and such Store or Stores shall not be included in the Acquired Assets, shall not constitute Acquired Store(s) and the Lease(s) therefor shall not constitute Acquired Lease(s), and instead such Store or Stores shall be included in the USA Remaining Stores (if such Stores are located in the United States) or Canadian Retained Stores (if such Stores are located in Canada), and the Lease(s) therefor shall constitute USA Remaining Lease(s) (if such Stores are located in the United States) or Canadian Retained Leases (if such Stores are located in Canada), in each case, for all purposes of this Agreement.
(iii) If at any time prior to the Applicable Closing, Buyer, at its option and in its sole discretion, determines not to assume any of the Acquired Agreements on Annex H or the Acquired Car Leases on Annex I, then Buyer shall, at any time prior to the Applicable Closing, provide written notice thereof to Seller, and upon any such Books notice (A) Annex H or Annex I, as applicable, shall automatically be amended to delete any such Contract therefrom and Records contain information that relates to both the Liquid Finishing Business (B) any such Contract shall not constitute an Acquired Agreement or an Acquired Car Lease (as applicable), and to any other business of Graco or any of its Affiliates and such information cantherefore shall not be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the constitute an Acquired Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records (and the applicable liabilities relating thereto shall not constitute Assumed Liabilities), and shall instead constitute a Retained Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary liabilities relating thereto shall be entitled to retain the originals constitute Retained Liabilities), in each case, for all purposes of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;this Agreement.
(iiv) all claimsBuyer hereby agrees that, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemes.Lease for any Acquired Store (after taking into account any amendments to the Acquired Stores Schedule pursuant to this Section 2.1), prior to the Applicable Closing, Buyer shall not terminate the existing Lease for such Acquired Store or renegotiate a new Lease with the Landlord thereof (and shall instead assume such Lease, either as it exists or with modifications agreed to between Buyer and the Landlord thereof), unless in connection with any such termination, the Landlord releases Seller from all
Appears in 1 contract
Sources: Asset Purchase Agreement (Childrens Place Retail Stores Inc)
Acquired Assets. On Upon the terms and subject to the conditions set forth in this Agreement and on the basis of this Agreementthe representations, warranties, covenants and agreements contained herein, at the ClosingClosing as provided in Section 1.9, Graco and Graco US Finishing Brands shallSeller shall contribute, and shall cause Sellers toassign, selltransfer, convey, transfer convey and deliver to PurchasersPurchaser, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase acquire from Sellers, free and clear of any Liens (except for Permitted Liens)Seller, all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interestsSeller’s right, beneficial or otherwise, title and interest in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) to all of the assets, properties, rights, claimsCommitments and claims of Seller, privileges, and interests of the Asset Selling Subsidiaries of every whatever kind and character and wherever locatednature, in each casereal or personal, relating totangible or intangible, used inthat are owned, leased or arising out licensed by Seller or any of its affiliates at the Liquid Finishing BusinessClosing, except for other than the Excluded Assets (collectively, the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality , in each case free and clear of the foregoingEncumbrances, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assetsincluding:
(a) All trade accounts receivable, notes receivable, negotiable instruments and chattel paper (collectively, the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining“Accounts Receivable”);
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinAll equipment, including real estate maintenance materials, furniture, furnishings, fixtures, leasehold improvementstools, security equipment and other depositstangible personal property, common-area-maintenance refundswherever located (collectively, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesthe “Equipment”);
(c) accounts receivable All Intellectual Property owned by Seller or any of their affiliates (including, but not limited to, all Extra-Liquid Finishing “Business Intercompany Accounts ReceivableIP”), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machineryAll trade secrets, equipmentconfidential information, partsknow-how, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers market surveys and tools) technical know-how of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes all open purchase orders related to a misrepresentation under Section 4.11 client’s request to Seller to supply services and for which Seller has not completed the work related thereto, and (ii) all other Commitments listed on Section 1.1(g) of the assumption Disclosure Schedule, other than (A) Seller Employee Benefit Plans or Commitments related to Seller Employee Benefit Plans or any collective bargaining agreement (or similar agreement or other labor union contract) and (B) any other Commitment that is an Excluded Liability (all of such Contract the Commitments covered by any Purchaser would, in such Purchaser’s reasonable determination, materially clauses (i) and adversely affect such Purchaser, unless Purchaser Parent gives written notice (ii) are collectively referred to Graco that it deems such Contract to constitute an Acquired Contractherein as the “Business Commitments”);
(f) All books and records, including all Business Intellectual Property of the Asset Selling Subsidiariesbusiness records in any form or medium, goodwill associated therewithresearch material, licenses and sublicenses granted and obtained tangible data, documents, personnel records with respect theretoto Transferred Employees, invoices, manuals, lists and rights thereundercorrespondence regarding customers, remedies against infringements thereofvendors, service providers, sales and rights to protection promotional literature, catalogs and advertising material used for the marketing of interests therein under the laws of all jurisdictionsservices, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) in each case whether stored or Schedule 1.4maintained in hard copy, digital or electronic format or otherwise (collectively, “Business Records”);
(g) all Permits issued to or held by any Asset Selling Subsidiary All permits, approvals, authorizations, licenses, franchises, certificates, privileges, immunities, orders, registrations, easements and relating to the Liquid Finishing Businessrights from Governmental Entities (collectively, “Permits”), to the extent transferable;
(h) all Books All rights, causes of action, claims and Records of any Asset Selling Subsidiary credits to the extent relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); providedBusiness, howeverany Acquired Asset or any Assumed Liability, that: (1) where including any such Books items arising under insurance policies and Records contain information that relates to both the Liquid Finishing Business all guarantees, warranties, indemnities and to similar rights in favor of Seller in respect of any other business of Graco Acquired Asset or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesAssumed Liability;
(i) all claimsAll telephone numbers, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, e-mail addresses and rights of recoupment (including any such item relating domain names related to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);; and
(j) all inventory (including finished products, work in process, raw materials, supplies, spare partsAll goodwill generated by, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefitsassociated with, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesBusiness.
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the each Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, each applicable Seller will sell, convey, transfer transfer, assign, and deliver to PurchasersPurchaser, and Purchaser Parent and US Purchaser shallwill purchase from each such Seller, all rights, title, and shall cause Purchasers tointerest in, purchase from Sellersto and under all assets, free and clear properties and/or rights of any Liens such Seller (except for Permitted Liens)other than Excluded Assets) at or related to the Dealership, all of the following Leased Real Estate and/or Owned Real Estate (all of the following being each a “Site”) applicable to such Closing (the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assetsincluding:
(a) the Seller Owned Real Propertyall RV inventory, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingincluding RV inventory in transit (“RV Inventory”);
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party all inventory of parts and all interests of any Asset Selling Subsidiary thereinaccessories for RVs, including real estate fixtures, leasehold improvements, security parts and other deposits, common-area-maintenance refunds, adjustments, accessories in transit (“Parts and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesAccessories”);
(c) accounts receivable all furniture, fixtures and equipment and all other non-inventory items of tangible personal property (includingthe “FF&E”), but including owned FF&E (the “HQ FF&E”) currently at the Lazydays headquarters located at 4▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “HQ”), as well as the pre-engineered shell (the “Vegas Structure”) for the Las Vegas, Nevada Site currently located at the manufacturer in Texas; provided, however, that (i) Purchaser shall not limited take possession of, and the Sellers shall retain use of and access to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable)the HQ FF&E until the earlier of written notice by Sellers to Purchaser or December 31, notes receivable, prepaid expenses, prepayments by customers, 2025; and deposits held by any Asset Selling Subsidiary relating (ii) Purchaser shall take possession of the Vegas Structure from the manufacturer within seven days after the Closing with respect to the Liquid Finishing BusinessLas Vegas, Nevada Site and pay any storage and transportation fees with respect thereto;
(d) all tangible personal property leases identified as “Assumed Leases” on Exhibit A (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller“Assumed Leases”), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business owned real estate identified in Exhibit A, as defined by legal description therein (the “Acquired ContractsOwned Real Estate”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property rights and receivables relating to works for maintenance, repair or replacements for customers of the Asset Selling Subsidiaries, goodwill associated therewith, licenses Business that are in process and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary not completed as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes“WIP”);
(i) all customer orders for RVs arising in the ordinary course of business and (ii) the other Contracts, if any, described in the Bill of Sale and Assignment and Assumption Agreement for the applicable Closing (collectively the “Assigned Contracts”);
(h) any cash paid to any Seller as a deposit by a customer of the Business with respect to services to be performed or goods to be provided by Purchaser as operator of the Business after a Closing (“Customer Deposits”) (which cash shall not be manually transferred by the applicable Seller to Purchaser and instead shall be a deduction to the Purchase Price payable to such Seller equal to the amount of such cash as set forth in the applicable Funds Flow Memorandum);
(i) all transferrable Governmental Permits (if any);
(j) all rights under warranties, net parts return privileges under an applicable manufacturer’s parts return plan, indemnities, and all similar rights against third parties to the extent arising from any of the other Acquired Assets;
(k) all intellectual property, including (i) the l▇▇▇▇▇▇▇.▇▇▇ domain name, (ii) the l▇▇▇▇▇▇▇.▇▇▇ website (and access thereto), (iii) access to the version of the l▇▇▇▇▇▇▇.▇▇▇ website in operation prior to September 2025, (iv) internally developed business intelligence platforms, (v) internally developed software applications (provided that Purchaser will acquire the items of intellectual property described in the foregoing clauses (i) through (v) only at the final Closing contemplated hereby); (vi) tradenames, service marks, brand names, logos and other similar designations of source, sponsorship, association, or origin (provided that Purchaser will acquire such names, marks, logos or designations containing “Lazydays” only at the final Closing contemplated hereby and before such final Closing shall not use any names, marks, logos or designations containing “Lazydays”); (vii) customer files; (viii) customer lists; (ix) vendor and supplier lists; (x) business telephone numbers; (xi) machinery and equipment maintenance files; (xii) information related to accounts, personnel and referral sources, customers and prospective customers, and billing records and (xiii) social media accounts and passwords, in each case whether evidenced in writing or electronic data;
(l) all goodwill value of the Business and/or any other Acquired Asset; and
(m) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set set-off, and rights of recoupment recoupment, choses in action and similar rights of any Seller, in each case, (including any such item relating i) to the payment of Taxesextent transferable under applicable Law and (ii) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held extent arising with respect to the Acquired Assets or the Assumed Benefit Plans/SchemesDealerships prior to the applicable Closing, but (iii) excluding any such claims, causes of action, rights of recovery, rights of set-off, rights of recoupment, choses in action or similar rights to the extent arising with respect to Excluded Assets (including all Excluded Contracts) or Excluded Liabilities.
Appears in 1 contract
Acquired Assets. On the terms and subject to the terms and conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallBuyer shall purchase from Seller, and Seller shall cause Sellers to, sell, conveytransfer, transfer convey and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens)Buyer, all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest of Seller, individually and collectively, in and to each of the followingfollowing assets (collectively, except the "Acquired Assets"):
(i) all accounts, notes and other receivables relating to the extent constituting Excluded Assets:
Business or the Acquired Assets (a) it being understood that in the event that Seller Owned Real Propertyat any time collects any amounts in respect of the Accounts Receivable included within the Acquired Assets subsequent to Closing, together with Seller shall promptly remit to Buyer all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingamounts so collected);
(bii) all raw materials and supplies, works-in-process, finished goods and other items of inventory relating to the Real Property Leases to which any Asset Selling Subsidiary is a party Business or the Acquired Assets (collectively, the "Inventory");
(iii) all machinery, office and all interests of any Asset Selling Subsidiary thereincomputer equipment, including real estate tools, furniture, fixtures, leasehold improvements, security improvements and other depositstangible personal property and fixed assets relating to the Business or the Acquired Assets, common-area-maintenance refundswherever located, adjustmentsincluding, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leaseswithout limitation (collectively, the "Fixed Assets");
(civ) accounts receivable (including, but not limited to, Seller's interest in all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, leases for real and deposits held by any Asset Selling Subsidiary personal property relating to the Liquid Finishing BusinessBusiness (collectively, the "Leases");
(dv) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary Intellectual Property relating to the Liquid Finishing Business (or the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling SubsidiariesAssets, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, thereto and rights thereunder, thereunder and all remedies against infringements thereof, thereof and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(gvi) all Permits issued to or held by any Asset Selling Subsidiary franchises, approvals, permits, licenses, orders, registrations, qualifications, certificates, variances and relating to the Liquid Finishing Businesssimilar rights (collectively, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary"Permits") relating to the Liquid Finishing BusinessBusiness or the Acquired Assets obtained from governmental agencies to the extent transferable to Buyer;
(kvii) all goodwill rights to receive mail and other communications addressed to Seller sent to the office of any Asset Selling Subsidiary Seller (including, without limitation, mail and communications from customers, suppliers, distributors, agents and others and payments) relating to the Liquid Finishing BusinessBusiness or the Acquired Assets;
(lviii) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(lbooks, records (including maintenance records, product tracing records, quality assurance/control records);
(m) , ledgers, files, photographs, archives, reference materials, documents, correspondence, lists, drawings, specifications, advertising and promotional materials, studies, reports, research and other printed or written materials relating to the Assigned Section 6.2(g) Rights and Benefits, Business or the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco AustraliaAcquired Assets; and
(oix) all assets held with respect other property owned by Seller or in which Seller has an interest that relates to the Assumed Benefit Plans/SchemesBusiness or the Acquired Assets, including, without limitation, the names "Sierra Tucson Hospital" and any derivatives thereof and the Business as a going concern and the goodwill thereof.
Appears in 1 contract
Acquired Assets. On the terms Each Seller agrees to sell and subject transfer to the conditions of this AgreementPurchaser, and Purchaser agrees to purchase from such Seller, at the Closing, Graco subject to and Graco US Finishing Brands shall, upon the terms and shall cause Sellers to, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellersconditions contained herein, free and clear of any Liens (except for Permitted Liens)Lien, all the following properties and assets of such Seller to the extent such properties and assets exist as of the following (all of Closing Date other than the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) Excluded Assets (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:):
(a) the Seller Owned Real Propertyall tangible personal property (such as equipment, together with all buildingscomputers, structurescomputer software, installations, fixtures supplies and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingfurniture) listed on Schedule 2.1(a);
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party all customer, client and all interests mailing lists of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesSellers;
(c) all files related to customer accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments serviced by customers, and deposits held by Sellers or any Asset Selling Subsidiary relating to the Liquid Finishing Businessof Sellers’ affiliates;
(d) all tangible personal property rights of Sellers under the licenses, permits, authorizations, orders, registrations, certificates, variances, approvals, consents and franchises (including machinerythe registrations and licenses of all registered representatives, equipmentinvestment advisor representatives and insurance agents) set forth on Schedule 2.1(d) and any pending applications thereto; but excluding any licenses, partspermits, goodsauthorizations, furnitureorders, furnishingsregistrations, hardwarecertificates, computersvariances, automobilesapprovals, trucks, tractors, trailers consents and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but franchises and pending applications that are not limited to, all tooling, molds, dies transferable by Law and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative PropertiesRegulation;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”Intellectual Property set forth on Schedule 2.1(e), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with in respect thereto, thereto and rights thereunder, remedies against infringements thereof, thereof and rights to protection of interests therein interest therein;
(f) all rights of Sellers under any contracts, indentures, mortgages, purchase orders, the laws of all jurisdictionsLeases, instruments, Liens, guaranties and other agreements relating to the Business, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed those set forth on Schedule 1.2(a2.1(f) or Schedule 1.4(collectively, the “Contracts”);
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, off and rights of recoupment (including any such item relating of Sellers to the payment extent related to any of Taxesthe other Acquired Assets;
(h) all business and financial records (other than the Tax records), books (other than the corporate minute books), ledgers (other than the corporate stock ledger), files, plans, documents, correspondence, lists, notebooks, creative materials, advertising and promotional materials, marketing materials, studies, reports, equipment repair, maintenance or service records, in each case whether written or electronically stored or otherwise recorded;
(i) all rights of any Asset Selling Subsidiary relating WFG to the Liquid Finishing use of the name “The ▇▇▇▇▇▇▇▇ Financial Group, Inc.,” and each other name, including each trade name, under which Sellers conduct the Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);; and
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession rights of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating Sellers to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary telephone numbers listed on Schedule 2.1(l2.1(j);
. Nothing in this Agreement nor the consummation of the transactions contemplated hereby shall be construed as an attempt or agreement to assign any Acquired Asset which by its terms or by Laws and Regulations is nonassignable without the consent of a third party or a governmental agency or body or is cancelable by a third party in the event of an assignment or purported assignment (m“Nonassignable Assets”) unless and until such consent shall have been obtained. To the Assigned Section 6.2(g) Rights extent permitted by applicable Laws and BenefitsRegulations, in the event consents to the assignment of an Acquired Asset cannot be obtained, such Nonassignable Assets shall not be assigned and transferred by Sellers to Purchaser at the Closing and instead shall be held, as of and from the Closing Date, by Sellers in trust for Purchaser. As of and from the Closing Date, the Assigned Transition Services Rights covenants and Benefits obligations thereunder shall be performed by Purchaser in such Seller’s name and all benefits and obligations existing thereunder shall be for Purchaser’s account. Each Seller shall take or cause to be taken at Purchaser’s expense such actions in such Seller’s name or otherwise as Purchaser may reasonably request so as to provide Purchaser with the benefits of the Nonassignable Assets (provided, however, Sellers shall not be required to incur any costs or agree to any material undertakings therewith) and to effect collection of money or other consideration that becomes due and payable under the Nonassignable Assets. Each Seller shall promptly pay over to Purchaser all money or other consideration received by such Seller after the Closing Date in respect of all Nonassignable Assets. As of and from the Closing Date, each Seller authorizes Purchaser, to the extent permitted by applicable Laws and Regulations and the Assigned Transitional Trademark License Rights terms of the Nonassignable Assets, at Purchaser’s expense, to perform all the obligations and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset receive all the benefits of Graco Australia; and
(o) such Seller under the Nonassignable Assets and Purchaser shall perform all assets held with respect to the Assumed Benefit Plans/Schemessuch obligations.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and Closing the Sellers shall cause Sellers to, sell, conveyassign, transfer and deliver to Purchasersthe Purchaser, and the Purchaser Parent shall purchase, all properties, assets, rights, titles and US Purchaser shallinterests of every kind and nature, whether tangible or intangible, whether real or personal and shall cause Purchasers towherever located and by whomever possessed, purchase from Sellers, related to the Business and owned by the Sellers free and clear of any and all Liens as of the Closing Date (except for other than Permitted LiensEncumbrances), all of the following (all of the following being the “Acquired Assets”): (iexcept as set forth in Section 2.1(b) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) below (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries "Acquired Assets”"). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;without limitation:
(i) all Proprietary Rights owned by either Seller or those Proprietary Rights owned by Stockholder and used in the Business, including without limitation those Proprietary Rights set forth on the Proprietary Rights Schedule, together with all income, royalties, damages and payments due or payable as of the Closing or thereafter, including, without limitation, damages and payments for past, present or future infringements or misappropriations thereof, the right to sue and recover for past infringements or misappropriations ther▇▇▇ and any and all corresponding rights that, now or hereafter, may be secured throughout the world and all copies and tangible embodiments of any such Proprietary Rights (in whatever form or medium);
(ii) all of the Sellers' rights existing under leases (other than the Terminated Leases), contracts, distribution arrangements, sales and purchase agreements, other agreements and business arrangements associated with or used by the Business, including, without limitation, all contracts and agreements described on the Contracts Schedule attached hereto, including renewal rights related thereto (collectively "Contracts");
(iii) all real property leased by the Sellers, and all rights to easements, servitudes, licenses, rights of way, permits and all appurtenances to such leased property, including, without limitation, all appurtenant rights in and to public streets, whether or not vacated pursuant to the leases for that real property, held by Seller and associated with or used by the Business (collectively, the "Real Property");
(iv) all leasehold improvements and all equipment (including all transportation and office equipment), fixtures, trade fixtures and furniture owned by the Sellers wherever located, including, without limitation, all such items which are located in any building, office or other space leased, owned or occupied by the Sellers or used in connection with the Real Property (the "Leasehold Improvements"), regardless of whether title to the Leasehold Improvements is subject to reversion to the landlord or other third party upon the expiration or termination of such Lease (but subject to those provisions);
(v) all office supplies, other miscellaneous supplies, and other tangible property of any kind wherever located, including, without limitation, all property of any kind located in any building, office or other space leased, owned or occupied by the Sellers or where any of the Sellers' properties and assets may be situated that are used by or associated with the Business;
(vi) all of the Sellers' claims, deposits, prepayments, prepaid expenses, warranties, guarantees, refunds, causes of action, choses in action, rights of recovery, rights of set off, set-off and rights of recoupment (including of any such item relating kind with respect to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Acquired Assets described in Sections 2.2(h) and 2.2(i(other than Cash);
(jvii) all inventory (including finished products, work in process, raw materials, supplies, spare parts, the right to receive and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) retain mail and other communications relating to the Liquid Finishing Business;
(kviii) all lists, records and other information pertaining to accounts, personnel and referral sources, suppliers and customers (whether past or current); and all books, ledgers, files, correspondence and business records of every kind; whether evidenced in writing, electronically (including, without limitation, by computer) or otherwise (the "Business Records") associated with the Business, provided, however, that Sellers may retain copies of and access to the Business Records necessary to collect all accounts receivable and service accounts payable of Sellers;
(ix) all advertising, marketing and promotional materials and all other printed or written materials;
(x) all transferable permits, Licenses, franchises, orders, registrations, certifications, variances and approvals from all permitting, licensing, accrediting and certifying agencies, and the rights to all data and records held by such permitting, licensing and certifying agencies (collectively "Permits") and all non-transferable Permits pursuant to Section 7.13;
(xi) all telephone numbers, including toll-free numbers, used by the Sellers;
(xii) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Businessas a going concern and all other intangible properties;
(lxiii) all tangible personal property of any Asset Selling Subsidiary the names "Insurance Plus," "Yale International Insurance" and "Yale Insurance;"
(xiv) the fixed assets listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco AustraliaFixed Assets Schedule; and
(oxv) except as specified in Section 2.1(b) below, all other property owned by the Sellers, or in which any Seller has an interest on the Closing Date in any way associated with the Business, including without limitation, all personal computers, signage and fixed assets held with respect related to the Assumed Benefit Plans/SchemesBusiness and any and all subsequent improvements or additions thereon through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (First Acceptance Corp /De/)
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreement, at on and as of the Closing"Closing Date" (as hereinafter defined), Graco and Graco US Finishing Brands shallSierra shall sell to the Buyer, and the Buyer shall cause Sellers topurchase from Sierra, sell, convey, transfer and deliver to Purchasersall, and Purchaser Parent not less than all, of the assets and US Purchaser shallproperties of Sierra (other than the "Excluded Assets" hereinafter defined) as set forth herein, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), all of as same are constituted on the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) Closing Date (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired "Assets”"). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include shall be comprised of all of the Asset Selling Subsidiaries’ rightfollowing:
(I) All (i) cash on hand, title cash and interest cash equivalent items held by or on behalf of Sierra, including without limitation checking accounts, marketable securities, bank 7 accounts and other cash items, (ii) the proceeds of accounts receivable including uncashed checks in payment thereof received by Sierra on or prior to the Closing Date, and (iii) related investments readily convertible into cash of Sierra (collectively, the "Cash Items");
(II) All trade accounts receivable, notes receivable and other rights to receive payment from customers of Sierra, including therein all accrued accounts receivable representing amounts payable in respect of products and services sold or otherwise provided to customers of Sierra which have not been invoiced or billed as at the Closing Date (collectively, the "Receivables"); provided, that the term Receivables shall not include those specific accounts receivable, if any, which are set forth on Schedule 1(A)(ii) annexed hereto;
(III) All inventories of raw materials, work-in-process, finished goods, operating supplies and materials, factory and maintenance supplies and related inventory items, which are owned by Sierra and used in connection with its business (collectively, the "Inventories");
(IV) All assumable prepaid items of Sierra for which the Company would receive an economic benefit following the Closing Date, and appropriately pro-rated through the Closing Date (collectively, the "Prepaid Items");
(V) All (i) machinery, equipment, molds, tooling, jigs, dies, measuring and calibrating devices, automobiles and other vehicles, files, systems, furniture, fixtures, office equipment and (subject to the terms and conditions respecting ownership thereof as provided by the terms and conditions of any lease and/or agreements with respect to the occupancy of Real Property referred to in Section 1(A)(x) hereof) leasehold improvements of Sierra which are owned by Sierra (collectively, the "Fixed Assets"); (ii) those additional Fixed Assets listed on Schedule 1(A)(v) annexed hereto which have been ordered for Sierra prior to the Closing Date, whether or not received as at the Closing Date; and (iii) those leases of personal property listed on Schedule 1(A)(v) annexed hereto;
(VI) All letters patent, patent applications, trademarks, copyrights and trade names, trademarks, computers, computer equipment, computer programs, computer software, and computer systems (other than those listed on Schedule 1(B)(ii)), library of books, records, know-how, trade secrets, technical information, brochures and other related assets of Sierra pertaining to its business and owned by Sierra (collectively, the "Intellectual Property");
(VII) All customer lists, trade secrets, licenses, permits, franchises, whether or not listed on Schedules to this Agreement, and related contract rights and other proprietary intangible assets of Sierra, whether or not confidential, and all books, records, printouts, drawings, data, files, notes, notebooks, accounts, invoices, correspondence and memoranda which are owned or possessed by Sierra (collectively, the "Documents and Records");
(VIII) All tools categorized as small hand tools and packaging and office supplies owned by Sierra, whether or not expensed (collectively, the "Supplies");
(IX) All rights and benefits of Sierra under all: (i) purchase orders on hand and customer bids and quotations; and all other contract rights, commitments and claims of Sierra which are specified under or pursuant to all manufacturers' warranties and any licenses or license agreements relating to any Intellectual Property used by Sierra for its business; (ii) contracts and agreements, including orders and commitments covering the purchase of Inventories and/or Supplies, the providing of services and/or products to customers, and agency, consultant and distributorship agreements; and (iii) all other contracts, orders and commitments which are not required to be scheduled pursuant to this Agreement and (in the case of such unscheduled contracts, orders and commitments) which have been entered into by Sierra in the normal and ordinary course of its business prior to the Closing Date and not in violation of the covenants contained in this Agreement (collectively, the "Contract Rights");
(X) All leasehold rights, as lessee, in and to those leases of real properties and improvements occupied by Sierra in connection with its business as are set forth of Schedule 1(A)(x) annexed hereto (the "Leased Real Estate");
(XI) The exclusive rights in and to the followingname "Sierra Press", except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easementstrade names and trademarks associated therewith, rights whether alone or in conjunction with any other name or word, and all other names used by Sierra in connection with the operation of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingits business as a going concern;
(bXII) the Real Property Leases Except as it may relate to which any Asset Selling Subsidiary is a party Excluded Assets and Excluded Liabilities, all interests of any Asset Selling Subsidiary thereinrights, benefits and claims, including real estate fixturesrights of indemnification, leasehold improvementsmonetary relief and/or replacement of Inventories, security and other depositsproducts or supplies, common-area-maintenance refundswhich may be asserted against any vendor, adjustmentsmanufacturer or supplier of Inventories, and other amounts now Fixed Assets or hereafter payable to any Asset Selling Subsidiary under or Supplies included in respect of such leasesthe Assets;
(cXIII) accounts receivable (including, but not limited toExcept for the Excluded Assets referred to in Section 1.2 hereof, all Extra-Liquid Finishing Business Intercompany Accounts Receivable)other rights and assets tangible or intangible, notes receivableof Sierra used by Sierra in connection with its business, prepaid expenses, prepayments by customers, except for such assets which have been disposed of in the normal and deposits held by any Asset Selling Subsidiary relating ordinary course of the business of Sierra and pursuant to this Agreement between the Liquid Finishing Businessdate hereof and the Closing Date;
(dXIV) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all All claims, prepayments, prepaid expenses, refundsrecoveries, causes of action, choses in action, rights of recovery, rights of set off, documents and rights of recoupment (including any such item records relating to pending proceedings, lawsuits and claims to which Sierra is a party as of the payment of Taxes) of any Asset Selling Subsidiary Closing Date and relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and BenefitsSierra, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco AustraliaAssets and/or to its business; and
(oXV) all assets held All rights incident, directly or indirectly, to insurance policies, proceeds, loss funds, claims, litigation and insurance accounts in connection with respect the Assets, Sierra and the operation of the business prior to the Assumed Benefit Plans/SchemesClosing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Panorama International Productions Inc)
Acquired Assets. On the terms and subject to the conditions of Closing Date, in accordance with this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and Sellers shall cause Sellers to, sell, convey, transfer transfer, assign and deliver to PurchasersBuyer, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens)Buyer will purchase, all of the following properties, assets and other rights, personal or mixed, tangible or intangible, owned or leased by or licensed to Seller and associated with the Clinics (all of the following being the “"Acquired Assets”): (i") all of the equity ownership interestswhich shall include, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating but not be limited to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real PropertyAll accounts receivable, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable)prepaid accounts, notes receivable, prepaid expensesMedicaid receivables or other receivables of the Clinics (the "Accounts Receivable"), prepayments by customers, including rights to all files and deposits held by any Asset Selling Subsidiary relating documentation substantiating Seller's rights to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) said Accounts Receivable in sufficient form to effect an efficient collection of any Asset Selling Subsidiary used in the Liquid Finishing Businesssaid Accounts Receivable, including, but not limited to, those Accounts Receivable listed on Schedule 2.1(a) hereto (collectively, the “Acquired Receivables”);
(b) All agreements, contracts, understandings, plans, obligations and commitments relating to or entered into by Seller in connection with the Clinics including, but not limited to, the agreements listed on Schedule 2.1(b) hereto (the "Acquired Contracts");
(c) All Equipment owned by Seller and used or useable in connection with the Clinics, including all toolingequipment and property of the Clinics as listed on Schedule 2.1(c);
(d) All cash, moldsbank accounts, dies certificates of deposit, and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as Cash Equivalents of October 23, 2008, by and among Graco US Finishing Brands (as Seller associated with the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative PropertiesClinics;
(e) All right, title and interest of the 3M-Related Agreements Seller in and to all deposits, prepaid expenses, Medicaid reimbursements, deferred charges, advance payments, customer advances and prepayments of Seller, and all Contracts right, title and interest of any Asset Selling Subsidiary relating to Seller in escrow accounts and deposits associated with the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired ContractClinics;
(f) To the extent transferable under applicable law, all Business Intellectual Property federal, state and local permits, authorizations, certificates, approvals, registrations, variances, exemptions, rights-of-way, franchises, rights of other kind and character which are required by law or are used in connection with the operation of the Asset Selling SubsidiariesClinics, goodwill associated therewithincluding, licenses and sublicenses granted and obtained with respect theretowithout limitation, and rights thereunder, remedies against infringements thereof, and rights Seller's license to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary operate as listed on Schedule 1.2(a) or Schedule 1.4a Medicare provider;
(g) all Permits issued to or held by any Asset Selling Subsidiary All insurance proceeds and insurance claims of the Seller, relating to all or any part of the Liquid Finishing BusinessClinics and, to the extent transferabletransferable by the Seller, the benefit of and the right to enforce the covenants and warranties, if any, which the Seller is entitled to enforce with respect to the Clinics or the Acquired Assets;
(h) Copies or originals of all Books books, records, papers and Records instruments of any Asset Selling Subsidiary whatever nature and wherever located which (i) relate to the Clinics or the Acquired Assets, (ii) are used or usable by the Seller in connection with the Clinics, or (iii) are required or necessary in order for the Buyer to conduct operations of the Clinics from and after the Closing in the manner in which it is presently being conducted, including, without limitation, accounting and financial records, personnel and labor relations records, sales and property tax records and returns, Medicare records, customer lists, sales records and other customer data relating to the Liquid Finishing Business (except for Clinics and all of the Books Seller’s supplier lists and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates supplier data relating to the Liquid Finishing Businesspurchase of equipment and other supplies used in connection with the Clinics, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books but excluding income tax records and Records returns and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books corporate minute book and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesstock records; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;and
(i) all claimsAll of the going concern value of the Clinics, prepaymentsincluding, prepaid expensesbut not limited to, refunds, causes the use of action, choses in action, the names of the Clinics and any trademark rights of recovery, or other rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession names of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesClinics.
Appears in 1 contract
Sources: Asset Purchase Agreement (Taurus Entertainment Companies Inc)
Acquired Assets. On the terms and subject to the terms and conditions of this Agreement, and subject to the satisfaction of the conditions precedent set forth herein, at the Closing, Graco Buyer shall purchase, acquire and Graco US Finishing Brands shallaccept from Sellers, and Sellers shall cause Sellers tosell, selltransfer, convey, transfer assign and deliver to PurchasersBuyer, all their right, title and Purchaser Parent interest in, to and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), under all of the following assets and property of Sellers, of every kind and description, wherever located, and whether real, personal or mixed, tangible or intangible, as such assets and property shall exist on the Closing Date, including, without limitation:
(a) all of Cash;
(b) all Accounts Receivable;
(c) all Pre-Paid Expenses;
(d) all Real Property;
(e) all Inventory;
(f) all Assigned Contracts;
(g) all Intellectual Property and Intellectual Property Licenses;
(h) all Authorizations, variances and similar rights obtained from Authorities affecting or relating in any way to the following being Acquired Assets or the “Acquired Assets”): Assumed Liabilities;
(i) all of the equity ownership interestsright, beneficial or otherwise, title and interest in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) to all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or insurance proceeds arising out of or related to the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include or the Assumed Liabilities;
(j) all of the Asset Selling Subsidiaries’ right, title and interest in and to the followingpersonal property, except vehicles, machinery and equipment (including leasehold interests in equipment subject to capitalized leases to the extent constituting Excluded Assets:
(a) the Seller Owned Real Propertyassignable), together with all buildingsspare parts, structuresoffice furniture, installations, office fixtures and other improvements situated thereon supplies used or useful in connection with the Acquired Assets or the Assumed Liabilities, wherever located (including any such property located at any Leased Real Property regardless of whether the lease with respect thereto is assigned to Buyer) and all easementswhether owned or leased, rights of way and other rights, interests and appurtenances of including equipment to be installed at any Asset Selling Subsidiary therein or thereunto pertainingfacility;
(bk) the Real Property Leases all lists and records pertaining to which any Asset Selling Subsidiary is a party customer accounts (whether past or current), suppliers, distributors, personnel and agents and all interests of any Asset Selling Subsidiary thereinother books, including real estate fixturesledgers, leasehold improvementsfiles, security documents, correspondence and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary business records relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and or the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesAssumed Liabilities; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(il) all claims, prepaymentswarranties, prepaid expensesguarantees, refunds, causes of action, choses in action, rights of recovery, rights of set off, set-off and rights of recoupment (including of every kind and nature affecting or relating in any such item relating way to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Acquired Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemes.Liabilities;
Appears in 1 contract
Acquired Assets. On (a) Subject to the terms and subject to the conditions set forth in this Agreement and on the basis of this Agreementthe representations and warranties herein, at the Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers Seller agrees to, sell, convey, transfer transfer, assign and deliver to Purchasersthe Buyer, and Purchaser Parent the Buyer agrees to purchase, receive and US Purchaser shallaccept, and shall cause Purchasers toas applicable, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), the Seller all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ Seller’s right, title and interest in and to the followingassets and properties of every kind, except character and description, used in or for the benefit of the Business, whether tangible, intangible, real, personal or mixed, set forth in Schedule 2.1(a) hereto (collectively referred to hereinafter as the extent constituting “Assets”) other than the Excluded Assets:
Assets (aas defined below). Schedule 2.1(a) is referred to herein as the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any “Asset Selling Subsidiary therein or thereunto pertaining;Schedule”.
(b) Without limitation of the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinforegoing, including real estate fixturesthe Assets shall include, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in each case in respect of such leases;
(c) accounts receivable (including, but not limited tothe Seller, all Extra-Liquid Finishing Business Intercompany the tangible property, furniture, fixtures and equipment, Fifty Percent (50%) cash on hand at the Closing, Fifty Percent (50%) of the Accounts ReceivableReceivable (to the extent transferable under applicable Law), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating receivable (to the Liquid Finishing Business;
(d) all tangible personal property extent listed on the Asset Schedule), inventory (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Selleroffice supplies), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands tenant improvements (as to the assignee of ITW Parent and ITW US Sellerextent related to a lease which is an Assigned Contract), 3M Company goodwill, software, Intellectual Property (other than as set out as an Excluded Asset), Prepaid Items, Assigned Contracts, Assigned Personal Property Leases, books and 3M Innovative Properties;
records (e) the 3M-Related Agreements including all customer lists and all Contracts of any Asset Selling Subsidiary relating patient lists to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e)extent transferable under applicable Law, but excluding any Contract patient medical records and files to the extent required to be retained by the Seller and any communications which are subject to attorney-client privilege), any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if Seller policies and procedures relating to the Business, telephone and email addresses, all Permits and certificates of need to the extent transferable to the Buyer, all benefits, proceeds and other amounts payable under any Seller policy of insurance to the extent (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and amounts are payable for losses suffered or payable by Buyer or (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records amounts are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held payable with respect to an Assumed Liability or other liability included in the Assumed Benefit Plans/Schemescalculation of Working Capital.
Appears in 1 contract
Sources: Asset Purchase Agreement (Generex Biotechnology Corp)
Acquired Assets. On the terms and subject ACE agrees to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallconvey to IBM, and shall cause Sellers toIBM agrees to accept, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear as of any Liens (except for Permitted Liens)the Commencement Date, all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ ACE’s right, title and interest in and to the followingAcquired Assets, except subject to certain restrictions regarding the use of the same and providing access to the extent constituting Excluded Assets:
(a) same set forth in the Seller Owned Real PropertySystems Facilities Agreement. In consideration for such conveyance, together with all buildings, structures, installations, fixtures IBM agrees to pay ACE the Acquired Assets Credit. ACE represents and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases warrants to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating IBM that IBM shall take good title to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated Acquired Assets as of October 23the Commencement Date, 2008, by free and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws clear of all jurisdictionsliens. Except as otherwise expressly provided in this Section 6.9, including ACE CONVEYS THE ACQUIRED ASSETS TO IBM ON AN “AS IS,” “WHERE IS” AND “WITH ALL FAULTS” BASIS. ACE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACQUIRED ASSETS, INCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ACE agrees to pass through to IBM any warranties made by third parties regarding the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing BusinessAcquired Assets, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating ACE is permitted to do so by such third parties. To the Liquid Finishing Business (extent that IBM reconveys to ACE the Acquired Assets, IBM will do so in the same condition that IBM received such Acquired Assets except for the Books reasonable wear and Records identified as Excluded Assets); providedtear. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, howeverTO THE EXTENT THAT IBM RECONVEYS TO ACE THE ACQUIRED ASSETS, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing BusinessTHEY ARE RECONVEYED TO ACE ON AN “AS IS,” “WHERE IS” AND “WITH ALL FAULTS” BASIS, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and RecordsAND IBM HEREBY DISCLAIMS ALL WARRANTIES, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and RecordsEXPRESS OR IMPLIED, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and RecordsWITH RESPECT TO SUCH RECONVEYED ACQUIRED ASSETS, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claimsINCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, prepaymentsMERCHANTABILITY, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesOR FITNESS FOR A PARTICULAR PURPOSE.
Appears in 1 contract
Sources: Information Technology Services Agreement (Ace LTD)
Acquired Assets. On the terms and subject to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and Sellers shall cause Sellers to, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and Purchasers shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Seller Parent and its Subsidiaries of every kind and character and wherever located, in each case, case relating to, used in, or arising out of the Liquid Finishing BusinessBusiness (including the equity ownership interests in certain of Seller Parent’s Subsidiaries through which the Finishing Business is conducted), except for the Excluded Assets (collectively, the “Asset Selling Subsidiaries Acquired Assets”); provided, however, that Sellers shall sell, convey, transfer and deliver to IP Purchaser (or its designee(s)) the Acquired Assets described in and subject to the terms of subsection (f) below (the “Designated Acquired Assets”) at the Closing free and clear of all Liens, except for Permitted Liens. Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling SubsidiariesSellers’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary Seller therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary Seller is a party and all interests of any Asset Selling Subsidiary Seller therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary Seller under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable)receivable, notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary Seller relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary Seller used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary Seller relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule Section 4.11 of the Disclosure Schedules if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco Seller Parent that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling SubsidiariesProperty, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, in each case relating to the Finishing Business including the DeKups Business Registered Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a4.10(a), which shall be assigned, or caused to be assigned, by Sellers, or their designees, to IP Purchaser, or its designee, by assignment, at Closing, whereby the payment of any fees or expenses in connection with the recordation, certification and/or any other document or process related to such transfer of ownership (but excluding any Taxes relating to any pre-closing transfer of Business Intellectual Property by Seller Parent or any of its Affiliates) shall be the sole responsibility and at the sole expense of IP Purchaser or Schedule 1.4Purchaser Parent;
(g) all Permits issued to or held by any Asset Selling Subsidiary Seller and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary Seller relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary Seller relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h2.2(g) and 2.2(i2.2(h);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary Seller (including inventory at customer locations or in transit or otherwise owned by any Asset Selling SubsidiarySeller) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;equity and ownership interests in the entities listed on Schedule 2.1(k) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect subsidiary of Seller Parent; and
(l) all tangible personal property assets of any Asset Selling Subsidiary listed on Schedule 2.1(l)the Finishing Business held by ITW Australia Pty Ltd, as a going concern;
(m) all assets of the Assigned Section 6.2(g) Rights and BenefitsFinishing Business held by ITW Limited, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;as a going concern; and
(n) all goodwill of any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect Seller relating to the Assumed Benefit Plans/SchemesFinishing Business. For the avoidance of doubt, as used herein, “Acquired Assets” includes all Designated Acquired Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (Graco Inc)
Acquired Assets. On the terms and subject to the conditions set forth in this Agreement and subject to approval of this Agreementthe Bankruptcy Court under Sections 105, 363, 365 and 1141 of the Bankruptcy Code, at the ClosingClosing the Seller shall sell, Graco and Graco US Finishing Brands shallassign, and shall cause Sellers to, selltransfer, convey, transfer and deliver, and cause the Selling Subs to sell, assign, transfer, convey and deliver to Purchasers, the Purchaser and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellersthe Purchasing Subs, free and clear of all liens, claims, interests and encumbrances of any Liens (nature except for Permitted LiensExceptions, and the Purchaser and the Purchasing Subs shall purchase and accept from the Seller and the Selling Subs (collectively, the assets set forth in Section 1.1(a), all of the following (all of the following being the Section 1.1(b) and Section 1.1(c) are referred to as “Acquired Assets”): ):
(ia) all of the outstanding equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) interests (collectively, the “Acquired SubsidiariesInterests”), each ) of which is a wholly-owned direct or indirect Subsidiary the subsidiaries of Graco; (ii) the rights under such Contracts as are Seller set forth on Schedule 2.1(ii1.1(a) (each a “Transferred Sub” and collectively the “Acquired ITW Ancillary AgreementsTransferred Subs”).
(b) all legal and beneficial right, title, and (iii) all interest of the assets, properties, rights, claims, privileges, Seller and interests of the Asset each Selling Subsidiaries Sub in and to any and all assets of every kind and character and description, whether tangible or intangible, real, personal or mixed, wherever locatedsituated, owned, held or used by the Seller (or any Selling Sub) or in each casewhich the Seller (or any Selling Sub) has any right, relating totitle or interest that is owned, used indirectly or indirectly, leased or arising out of otherwise held primarily for use in the Liquid Finishing Business, except for the Excluded Assets and except for any executory contracts and leases which are not specifically listed on Schedules 1.1(b)(ii)(A), 1.1(b)(ii)(B), 1.1(b)(ii)(D) or 1.1(b)(vi)(B), and specifically including the following:
(i) all accounts receivable (which are not excluded pursuant to Section 1.2(b)) arising out of the operation of the Business existing on the date hereof including, without limitation, those listed or described on Schedule 1.1(b)(i), or arising in the ordinary course under the Customer Contracts after the date hereof (the “Asset Selling Subsidiaries Acquired AssetsAccounts Receivable”). Without limiting the generality ;
(ii) all rights and incidents of interest of the foregoing, the Asset Seller and of each Selling Subsidiaries Acquired Assets include Sub to:
(A) all of the Asset waste management services agreements between the Seller (or one of the Selling Subsidiaries’ right, title Subs) and interest in and a customer primarily relating to the followingBusiness (the “Customer Contracts”) existing on the date hereof or arising in the ordinary course after the date hereof and listed or described on Schedule 1.1 (b)(ii)(A) (which Schedule will be provided by Purchaser prior to the Due Diligence Expiration Date);
(B) the agreements, except contracts and arrangements between the Seller (or one of the Selling Subs) and a vendor or other third party providing goods or services primarily relating to the Business listed on Schedule 1.1(b)(ii)(B) (which Schedule will be provided by the Purchaser prior to the Due Diligence Expiration Date);
(C) to the extent constituting transferable and exclusive of those which pertain to the Excluded Assets:Employees, all of the rights of the Seller (or one of the Selling Subs) regarding confidentiality, assignment of invention, and/or non-competition with respect to the Transferred Employees and former employees; and
(aD) all other agreements, contracts and arrangements that are listed or described on Schedule 1.1(b)(ii)(D) (which Schedule will be provided by the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingPurchaser prior to the Due Diligence Expiration Date);
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(diii) all tangible personal property (including machinery, equipment, parts, goodscomputers, furniture, furnishings, hardwarefixtures, computersoffice supplies, automobilesvehicles and all other tangible personal property currently owned by, trucksor on order to be delivered to, tractorsthe Seller or a Selling Sub, trailers and tools) of any Asset Selling Subsidiary that are used primarily in the Liquid Finishing Businessoperation of the Business or are located on, including, but not limited or to be delivered to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights Owned Real Property or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating premises subject to the Liquid Finishing Business Real Property Leases (collectively, the “Acquired ContractsTangible Personal Property”), including without limitation, such of the Contracts to which any Asset Selling Subsidiary is a party foregoing as set forth are listed or described on Schedule 4.10(e1.1(b)(iii), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(fiv) to the extent transferable, all Business Intellectual Property U.S. and other letter patent, patents, patent applications, patent licenses, software licenses and know-how licenses, trade names, trademarks, registered copyrights, service marks, trademark registrations and applications, service ▇▇▇▇ registrations and applications, copyright registrations and applications, internet addresses and other internet related assets used primarily in the operation of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictionsBusiness, including without limitation such of the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary foregoing as are listed or described on Schedule 1.2(a1.1(b)(iv) (the “Intellectual Property”), provided that the Purchaser (or Schedule 1.4;
(gone of the Purchasing Subs) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Businessshall, to the extent transferableit can and without cost (other than de minimis administrative costs) to the Purchaser (or such Purchasing Sub), (A) grant to the Seller and the Selling Subs a perpetual royalty-free and nontransferable license to use the Intellectual Property for the operation of the Seller’s and the Selling Subs’ businesses other than the Business after the Closing or, (B)in the alternative, transfer all or any portion of such Intellectual Property to the Seller and the Selling Subs;
(hv) all Books rights and Records of any Asset Selling Subsidiary claims under all warranties, representations and guarantees made by suppliers, manufacturers and contractors in connection with the Acquired Assets and all rights and claims relating to the Liquid Finishing Business (Assumed Liabilities except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco those shown or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(ion Schedule 1.1(b)(v);
(jA) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) the real property used primarily in the possession operation of any Asset the Business that is listed and described on Schedule 1.1(b)(vi)(A) (the “Owned Real Property”) and (B) the real property leases used primarily in the operation of the Business that are listed or described in Schedule 1.1(b)(vi)(B) (the “Real Property Leases”) (which Schedule will be provided by the Seller prior to the Due Diligence Expiration Date);
(vii) to the extent transferable, all licenses, permits, authorizations and approvals issued to the Seller or a Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned Sub by any Asset Selling Subsidiary) Governmental Entity primarily relating to the Liquid Finishing operation of the Business, including without limitation, such of the foregoing as are listed or described on Schedule 1.1(b)(vii);
(viii) the bank accounts and lockbox arrangements primarily relating to the Business that are listed or described on Schedule 1.1(b)(viii) (excluding all rights or incidents of interest with respect to the cash or cash equivalents in such bank accounts or lock box arrangements to the extent that such cash is excluded in the calculation of Working Capital pursuant to Section 1.7(b));
(ix) all prepaid items and deposits existing on the date hereof relating to the Business that are listed or described on Schedule 1.1(b)(ix) or that relate primarily to the Business arising in the ordinary course after the date hereof;
(x) all books and records of the Seller and the Selling Subs primarily relating to the operation of the Business;
(kxi) all goodwill of any Asset the rights, properties or assets that are listed or described on Schedule 1.1(b)(xi);
(xii) all inventories of supplies and spare parts of the Seller and the Selling Subsidiary Subs relating to the Liquid Finishing operation of the Business;
(lxiii) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) goodwill primarily related to the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco AustraliaBusiness; and
(oxiv) to the extent assignable, rights of indemnification from all assets held non-affiliated third parties for liabilities and obligations relating to the Business or the Acquired Assets.
(c) the company seal, minute books, charter documents, stock or equity record books and such other books and records as pertain to the organization, existence or capitalization of each Transferred Sub as well as any other records or materials relating to each Transferred Sub generally.
(d) Notwithstanding anything contained in this Agreement to the contrary, if, at or prior to the Closing, the Seller shall have obtained a Confirma tion Order authorizing the issuance to the Purchaser of 100% of the reorganized equity interests of the Domestic Transferred Subs listed on Schedule 1.1(d) outstanding immediately after such issuance, on terms and conditions with respect to the Assumed Benefit Plans/Schemesassets of the Domestic Transferred Subs substantially identical to those contained in the Section 363/365 Order and unless the Purchaser shall inform the Seller that it reasonably believes that the transfer of some or all of the reorganized equity interests of the Domestic Transferred Subs shall result in a material adverse tax consequence to the Purchaser (it being understood that a material adverse tax consequence will be deemed to result if the Purchaser would suffer more than $500,000 of tax or other economic detriment), which belief shall be held based on a reasonable good-faith determination of the Purchaser, the parties hereto intend and agree that 100% the reorganized equity interests of the Domestic Transferred Subs shall be transferred to the Purchaser and the Purchasing Subs pursuant to such Confirmation Order.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of this AgreementAgreement (including the exclusions set forth in Section 1.2), at on the ClosingClosing Date, Graco and Graco US Finishing Brands shall, and the Sellers shall cause Sellers to, sell, conveytransfer, transfer assign, convey and deliver to Purchasersthe Buyer Sub, and Purchaser Parent and US Purchaser shall, and the Buyer Sub shall cause Purchasers to, purchase from the Sellers, free and clear of any Liens all Encumbrances (except for Permitted LiensEncumbrances), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling SubsidiariesSellers’ right, title and interest in and to the following, except assets and properties of the Sellers of every kind and description (other than those being conveyed contemporaneously pursuant to the extent constituting UK Asset Purchase Agreement, the EU Stock Purchase Agreement or that are Excluded Assets), wherever located, real, personal or mixed, tangible or intangible, currently used in connection with the Diagnostics Business (herein collectively called the “Acquired Assets”), including all right, title and interest of the Sellers in, to and under:
(a) all of the Seller Owned machinery, equipment, tools, spare parts, supplies, vehicles, furniture, materials and other personal property owned or leased (as specified in Schedule 1.1(a) hereto) by the Sellers or located in or fixed to the Real Property, together including, without limitation, those items described on Schedule 1.1(a) hereto with all buildings, structures, installations, fixtures such additions thereto and other improvements situated thereon and all easements, rights deletions therefrom as may hereafter arise in the ordinary course of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;business prior to the Closing consistent with the Seller’s obligations under Article 8 hereof (the “Equipment”).
(b) all contracts, agreements, understandings, commitments, leases, licenses, instruments, purchase orders (whether or not such purchase orders have been acknowledged by the Real Property Leases to which any Asset Selling Subsidiary is a party counterparty and all interests of any Asset Selling Subsidiary thereinwhether or not such purchase orders have been executed by the issuing entity), including real estate fixturesguaranties, leasehold improvementsbids, security proposals, licenses, sublicenses, assignments and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(cindemnities listed on Schedule 1.1(b) accounts receivable (including, but not limited tohereto, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary unfilled orders relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as such contracts set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i1.1(b) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption outstanding as of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent for the purchase of raw materials, goods or services by the Sellers (a schedule of which shall cause Purchasers to provide Graco access be delivered by the Sellers to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following Buyer on the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claimsand, prepaymentsin draft form, prepaid expenses, refunds, causes of action, choses at least five business days in action, rights of recovery, rights of set offadvance thereof), and rights all unfilled orders outstanding as of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except Closing Date for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
sale of goods or services by the Sellers (j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefitscollectively, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemes.“Contracts”)
Appears in 1 contract
Acquired Assets. On (a) There are no properties or assets used, held for use or usable by Seller in the terms Business having an original cost as of the Interim Balance Sheet Date in excess of $10,000 which are not set forth on the Schedules hereto and, except for contemplated additions or deletions in the ordinary course of business consistent with past practice, the Acquired Assets (i) include all properties and subject assets owned by Seller or any of its Affiliates and used primarily in the Business, other than the Excluded Assets, (ii) in the aggregate, together with the Excluded Assets, are adequate to conduct the conditions operations of this Agreementthe Business in substantially the manner currently conducted, (iii) are suitable for the purposes for which they are currently used, (iv) have been maintained in accordance with Seller's historical practices since December 29, 1996, and (v) are in good condition, ordinary wear and tear excepted. Except as set forth on Schedule 4.4(a) annexed hereto, (i) all Business Employees are exclusive employees of the Business and do not perform services for other businesses of Seller, (ii) the Acquired Assets are not used by other businesses of Seller and (iii) the Acquired Assets include any and all assets owned or leased by Seller that are located at the ClosingBusiness Real Property and Leased Business Real Property, Graco other than the Excluded Assets.
(b) Seller has good and Graco US Finishing Brands shall, and shall cause Sellers to, sell, convey, transfer and deliver marketable title to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellersall of the Acquired Assets, free and clear of any Liens (Lien, except for Permitted Liens), . Seller is the direct sole and exclusive owner of all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities Assets other than those listed on Schedule 2.1(i4.4(b) (collectivelyannexed hereto as being leased, licensed or otherwise used by the “Acquired Subsidiaries”), each Seller. There are no Subsidiaries of Seller which is a wholly-owned direct own or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all have any leasehold interests in any of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party Except as set forth on Schedule 4.10(e)4.4(b) annexed hereto, but excluding Seller does not use any Contract to which of the Acquired Assets by the consent of any Asset Selling Subsidiary is a party that other Person and is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by required to make any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice payments to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held others with respect to the Assumed Benefit Plans/SchemesAcquired Assets. To the Knowledge of Seller, Seller has the right to use all of the Acquired Assets leased, licensed or otherwise used by it. Upon the Closing, Purchaser will hold good and marketable title to all of the Acquired Assets owned by Seller, free and clear of all Liens (except for any Permitted Liens and Surviving Liens) of any nature whatsoever, whether such Liens are now existing or perfected or at any time hereafter arise or become perfected pursuant to any Law, Contract or otherwise, and Purchaser will have the right to use all of the Acquired Assets leased, licensed or otherwise used by Seller.
(c) The Business is not as of the date hereof, and will not be on the Closing Date, subject in any way to the terms and conditions of either the SMT License Agreement or the Cramerton Supply Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Safety Components International Inc)
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the ClosingClosing referred to in Article 4 hereof, Graco and Graco US Finishing Brands shall, and the Seller shall cause Sellers to, sell, conveyassign, transfer and deliver to Purchasersthe Buyer, and Purchaser Parent the Buyer shall purchase, acquire and US Purchaser shall, take assignment and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens)delivery of, all of the following (all assets of the following being Seller used in or relating to the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing MMIC Business, except for with the exception of the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include as defined in Section 1.2) (all of which assets are hereinafter referred to collectively as the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:"ACQUIRED ASSETS"):
(a) the Seller Owned Real PropertyAll machinery, together with all buildings, structuresequipment, installations, fixtures fixtures, furniture, tools, supplies, materials and other improvements situated thereon personal property used primarily in connection with the MMIC Business, including without limitation those items described on SCHEDULE 1.1
(a) hereto, with such additions and all easementsdeletions thereto as may arise, rights or may have arisen, from the date as of way and other rights, interests and appurtenances which such Schedule was prepared in the ordinary course of any Asset Selling Subsidiary therein or thereunto pertainingbusiness prior to the Closing consistent with the Seller's obligations under Article 8 hereof (the "EQUIPMENT");
(b) Except as set forth in SCHEDULE 5.22, all of the Real Property Leases Seller's accounts receivable relating to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinthe MMIC Business outstanding on the Closing Date, including real estate fixturesto the extent reflected on the Closing Balance Sheet (as defined in Section 3.2), leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable as finally adjusted pursuant to any Asset Selling Subsidiary under or in respect of such leasesSection 3.2;
(c) accounts receivable All of the Seller's inventories held for use in the MMIC Business, including raw materials, work in process and finished goods (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivablethe "INVENTORIES"), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Businessextent reflected on the Closing Balance Sheet (as finally adjusted pursuant to Section 3.2);
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) All of any Asset Selling Subsidiary used in the Liquid Finishing Seller's prepaid expenses relating to the MMIC Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests to the extent reflected on the Closing Balance Sheet (as finally adjusted pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US SellerSection 3.2), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) all of the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary Seller's deferred charges relating to the Liquid Finishing Business MMIC Business, to the extent reflected on the Closing Balance Sheet (the “Acquired Contracts”as finally adjusted pursuant to Section 3.2), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property All of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained Seller's rights under all leases of personal property used primarily in connection with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4MMIC Business;
(g) All of the Seller's rights under all Permits issued to or held contracts and agreements, including without limitation joint venture agreements, teaming agreements, distribution agreements, supply agreements, license agreements, personal property leases and development contracts, entered into by any Asset Selling Subsidiary and relating to the Liquid Finishing Seller primarily in connection with the MMIC Business, to including without limitation the extent transferablecontracts listed on SCHEDULE 1.1(g);
(h) all Books and Records All of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following Seller's rights under purchase orders outstanding on the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access and relating primarily to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain MMIC Business, including without limitation the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposespurchase orders listed on SCHEDULE 1.1(h);
(i) All of the Seller's rights with respect to all claims, prepayments, prepaid expenses, refunds, causes of action, choses MMIC Business Intellectual Property (as defined in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of TaxesArticle 17) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i)Seller;
(j) to the extent transferable, all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) of the Seller's rights with respect to all computer software programs used primarily in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing MMIC Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing extent transferable, all of the Seller's rights with respect to any licenses, permits, concessions, orders, authorizations, approvals or registrations from, of or with any Governmental Entity (as defined in Article 17) and relating primarily to the MMIC Business;; and
(l) subject to Section 12.3, all tangible personal property records of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect Seller relating primarily to the Assumed Benefit Plans/SchemesMMIC Business, including, without limitation, financial and tax records, property records, production records, purchasing and sales records, personnel and payroll records, customer lists, credit records, accounting records and such other records as the Buyer may reasonably require to conduct the MMIC Business subsequent to the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Triquint Semiconductor Inc)
Acquired Assets. On the terms For purposes of this Agreement and subject to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted LiensSECTION 2.5(b), all of the following (all of the following being the “Acquired Assets”): term "ACQUIRED ASSETS" means (i) all the Equity Securities of the equity ownership interests, beneficial or otherwise, Acquired Companies (other than the Subsidiaries of the Acquired Companies) and in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; Minority Investees and (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claimstitle and other interests of Seller Parties primarily used or held for use in connection with the Acquired Business, privilegeswhether tangible or intangible, real, personal or mixed, set forth or described in paragraphs (a) through (ll) below (including Contracts and Leases entered into by Seller Parties following the date hereof which constitute Assumed Contracts or Assumed Leases) whether or not any of such assets, properties or rights have any value for accounting purposes or are carried or reflected on or specifically referred to in Seller's financial statements (PROVIDED, that the Acquired Assets shall not include the Excluded Assets):
(a) all franchise, prime license, license, sublicense, agency and dealer Contracts to which any of Seller Parties is a party listed in SECTION 3.15(a) OF THE SELLER PARTIES DISCLOSURE SCHEDULE and the franchise, prime license, license, sublicense, agency and dealer Contracts relating to the Acquired Business entered into by Seller Parties following the date hereof in compliance with SECTION 5.1(dd);
(b) all marketing and barter Contracts to which any of Seller Parties is a party listed in SECTIONS 3.15(b) and 3.15(u) OF THE SELLER PARTIES DISCLOSURE SCHEDULE, respectively, and interests such other written marketing Contracts relating to the Acquired Business entered into by any of Seller Parties in the Asset Selling Subsidiaries ordinary course of every kind business consistent with past practice and character which may be terminated by Seller Parties by giving 90 days' (or such shorter period specified therein) notice to the other party thereof, without (i) any penalty or other payment by any Seller Party, (ii) imposing any requirement that Seller Parties sell or dispose of any assets or properties and wherever located(iii) imposing any limitations on the conduct of business by any Seller Party;
(c) all CorpRate Contracts to which any of Seller Parties is a party listed in SECTION 3.15(c) OF THE SELLER PARTIES DISCLOSURE SCHEDULE or not required to be listed therein 20 pursuant to SECTION 3.15(c), and such other written CorpRate Contracts relating to the Acquired Business entered into by any of Seller Parties in the ordinary course of business consistent with past practice and which may be terminated by Seller Parties by giving 90 days' (or such shorter period specified therein) notice to the other party thereof, without (i) any penalty or other payment by any Seller Party, (ii) imposing any requirement that Seller Parties sell or dispose of any assets or properties and (iii) imposing any limitations on the conduct of business by any Seller Party;
(d) all association Contracts to which any of Seller Parties is a party listed in SECTION 3.15(d) OF THE SELLER PARTIES DISCLOSURE SCHEDULE or not required to be listed therein pursuant to SECTION 3.15(d), and such other written association Contracts relating to the Acquired Business entered into by any of Seller Parties in the ordinary course of business consistent with past practice and which may be terminated by Seller Parties by giving 90 days' (or such shorter period specified therein) notice to the other party thereof, without (i) any penalty or other payment by any Seller Party, (ii) imposing any requirement that Seller Parties sell or dispose of any assets or properties and (iii) imposing any limitations on the conduct of business by any Seller Party;
(e) all joint venture, limited liability company and partnership Contracts to which any of Seller Parties is a party listed in SECTION 3.15(e) OF THE SELLER PARTIES DISCLOSURE SCHEDULE;
(f) all affiliation Contracts to which any of Seller Parties is a party listed in SECTION 3.15(f) OF THE SELLER PARTIES DISCLOSURE SCHEDULE and such other written affiliation Contracts relating to the Acquired Business entered into by any of Seller Parties in the ordinary course of business consistent with past practice and which may be terminated by Seller Parties by giving 90 days' (or such shorter period specified therein) notice to the other party thereof, without (i) any penalty or other payment by any Seller Party, (ii) imposing any requirement that Seller Parties sell or dispose of any assets or properties and (iii) imposing any limitations on the conduct of business by any Seller Party;
(g) all general sales agency, travel agency and tour operator Contracts to which any of Seller Parties is a party listed in SECTION 3.15(g) OF THE SELLER PARTIES DISCLOSURE SCHEDULE, and such other written general sales agency, travel agency and tour operator Contracts relating to the Acquired Business entered into by any of Seller Parties in the ordinary course of business consistent with past practice and which may be terminated by Seller Parties by giving 90 days' (or such shorter period specified therein) notice to the other party thereof, without (i) any penalty or other payment by any Seller Party, (ii) imposing any requirement that Seller Parties sell or dispose of any assets or properties and (iii) imposing any limitations on the conduct of business by any Seller Party;
(h) all Contracts with Vehicles Manufacturers and Repurchase Programs to which any of Seller Parties is a party listed in SECTIONS 3.15(h) AND 3.28(b) OF THE SELLER PARTIES DISCLOSURE SCHEDULE (including the Ford Agreements);
(i) all bus and truck lease Contracts to which any of Seller Parties is a party listed in SECTION 3.15(i) OF THE SELLER PARTIES DISCLOSURE SCHEDULE, and such other written bus and truck lease Contracts relating to the Acquired Business entered into by any of Seller Parties in the ordinary course of business consistent with past practice solely for purposes of replacing service buses and trucks which are Support Vehicles on the date of this Agreement and up to four service buses and trucks which are not replacements of such service buses and trucks;
(j) all fuel supply Contracts to which any of Seller Parties is a party listed in SECTION 3.15(j) OF THE SELLER PARTIES DISCLOSURE SCHEDULE and such other written fuel supply Contracts relating to the Acquired Business entered into by any of Seller Parties in the ordinary course of business consistent with past practice and which may be terminated by Seller Parties by giving 90 days' (or such shorter period specified therein) notice to the other party thereof, without (i) any penalty or other payment by any Seller Party, (ii) imposing any requirement that Seller Parties sell or dispose of any assets or properties and (iii) imposing any limitations on the conduct of business by any Seller Party;
(k) (i) all vendor Contracts to which any of Seller Parties is a party listed in SECTIONS 3.15(k) OF THE SELLER PARTIES DISCLOSURE SCHEDULE or not required to be listed therein pursuant to SECTIONS 3.15(k) (other than vendor Contracts not required to be listed in SECTION 3.15(k) OF THE SELLER PARTIES DISCLOSURE SCHEDULE with any Affiliate of Seller Parties or any director, officer, agent or any relative thereof), (ii) such other written vendor Contracts relating to the Acquired Business entered into by any of Seller Parties in the ordinary course of business consistent with past practice (x) solely for purposes of replacing vendor Contracts listed in SECTION 3.15(k) OF THE SELLER PARTIES DISCLOSURE SCHEDULE or not required to be listed therein upon the termination thereof, to the extent each such replacement vendor Contract (A) has a term not exceeding one year from the date of execution thereof and (B) does not require any of Seller Parties to make payments thereunder in amounts exceeding the amounts payable by Seller Parties under the vendor Contract so replaced (other than normal immaterial ordinary course increases) and (y) not contemplated by clause (x) above, which provide for payments thereunder not exceeding $25,000 for any individual Contract or $250,000 for all such Contracts in the aggregate, in each case in any calendar year and (iii) all other Contracts to which any of Seller Parties is a party listed in SECTION 3.15(m) OF THE DISCLOSURE SCHEDULE, other than those Contracts specified therein (i) that are not transferred and assumed by Buyer pursuant to the Agreements and (ii) that shall be terminated prior to Closing;
(l) all Contracts relating to Assumed Indebtedness;
(m) the TFFC MV Leases and the ▇▇▇▇ ▇▇ Lease (including, in each case, the guaranties of any Seller Party in respect of lease payments due thereunder) and the TEAM Interest and the Budget Interest (each as defined in the Amended and Restated Base Indenture, dated as of December 1, 1996, among TFFC, Seller and Deutsche Bank Trust Company Americas, as Trustee, and the various supplements thereto);
(n) all insurance or reinsurance Contracts and/or policies and similar arrangements under which any Seller Party is an insured party listed in SECTION 3.25(a) OF THE SELLER PARTIES DISCLOSURE SCHEDULE (the "ACQUIRED INSURANCE CONTRACTS");
(o) all collective bargaining Contracts to which any of Seller Parties is a party listed in SECTION 3.15(l) OF THE SELLER PARTIES DISCLOSURE SCHEDULE, and any collective bargaining Contracts relating toto the Acquired Business entered into by any of Seller Parties following the date hereof in compliance with SECTION 5.1(r);
(p) all Assumed Benefit Plans (including the Assumed Benefit Plans Contracts) and all assets associated therewith (including, used without limitation, all assets held in trust);
(q) all License Agreements to which any of Seller Parties is a party and relating to the Acquired Business listed in SECTION 3.22(c) OF THE SELLER PARTIES DISCLOSURE SCHEDULE; PROVIDED, HOWEVER, that with respect to the rights, title and interest of Seller Parties in, to and under the License Agreement between Ryder Systems, Inc. ("RSI") and Ryder TRS, Inc., dated as of October 17, 1996, as amended (the "RYDER LICENSE AGREEMENT"), subject to the limitations, if any, imposed by a Final Order or arising out pursuant to a settlement agreement reasonably acceptable to Buyer, between Seller Parties and RSI resulting from the dispute between Seller Parties and RSI described in SECTION 3.13(a) OF THE SELLER PARTIES DISCLOSURE SCHEDULE;
(r) all Airport Concessions to which any of Seller Parties is a party listed in SECTION 3.17(a) OF THE SELLER PARTIES DISCLOSURE SCHEDULE, and such other Airport Concessions relating to the Acquired Business to which any of Seller Parties becomes a party in the ordinary course of business consistent with past practice;
(s) (i) all Leases to which any of Seller Parties is a party listed in SECTION 3.16(a) OF THE SELLER PARTIES DISCLOSURE SCHEDULE and not excluded from the transactions contemplated hereby pursuant to SECTION 2.4(a), and the Fixtures and appurtenances at the Premises subject thereto owned by any Seller Party and (ii) the Leases relating to the Acquired Business entered into by Seller Parties following the date hereof in compliance with SECTION 5.1(dd);
(t) fee simple title to all Owned Real Property owned by any Seller Party listed in SECTION 3.16(b) OF THE SELLER PARTIES DISCLOSURE SCHEDULE and the Fixtures and appurtenances thereat owned by any Seller Party;
(u) all Rental Vehicles and Support Vehicles owned by Seller Parties (in each case, including Owned Vehicles);
(v) all tools, machinery, replacement and spare parts and supplies relating to the Acquired Business;
(w) all Intellectual Property (other than the License Agreements referred to in SECTION 2.3(q), which shall be subject to the provisions thereof);
(x) the Permits held by or in connection with the Acquired Business, to the extent such Permits are assignable to Buyer;
(y) the Business Records and the Documents;
(z) all accounts receivable relating to the Acquired Business, including, without limitation, (i) credit card receivables, direct ▇▇▇▇ receivables, tour receivables, Vehicle Manufacturer receivables, Franchisee receivables and subrogation receivables, excluding the receivables referred to in SECTION 2.4(h) and (ii) customer, Franchisee and Dealer deposits, security or collateral;
(aa) all credits, prepaid expenses (including garage and gas inventory), deferred charges, advance payments, security deposits and prepaid items (and, in each case, security interests or liens from Third Parties relating thereto) related to any Acquired Asset or the Acquired Business;
(bb) all vendor allowances, including volume and promotional incentive allowances and any other credits of Seller Entities received by or accruing to such Persons related to vendor Contracts that are being assumed by Buyer or vendor Contracts with respect to which Buyer is assuming liabilities;
(cc) all claims, judgments or causes of action of Seller Entities to the extent relating to any of the Liquid Finishing Acquired Assets or the Acquired Business, including claims for manufacturer's or vendor's warranties with respect to the Acquired Assets or products liability related to the Acquired Assets, and claims related to the value, condition or title to the Acquired Assets;
(dd) counterclaims, set-offs, recoupment rights or defenses with respect to the Assumed Liabilities;
(ee) insurance claims and proceeds payable in respect of any casualty event related to any Acquired Asset or the Acquired Business;
(ff) any and all rights of Seller Parties under the Business Acquisition Agreements (except for indemnification with respect to third-party claims, which shall be retained by Seller Parties to the Excluded Assets extent of any third-party claims against Seller Parties made at any time);
(the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality gg) all confidentiality and similar agreements entered into by any Seller Party or any of their respective representatives in connection with a sale of the foregoing, the Asset Selling Subsidiaries Acquired Assets include Business;
(hh) all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except Telephone Numbers and all rights and interests in and to the extent constituting Excluded Assets:
(a) the Telephone Numbers used by any Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingParty;
(bii) the Real Property Leases to which any Asset Selling Subsidiary is a party all bank accounts and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, commonlock-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) box accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Acquired Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferableAcquired Company;
(hjj) all Books cash, cash deposits, surety, security and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set offsimilar deposits, and rights negotiable and non-negotiable instruments of recoupment Seller Parties (including any such item relating other than the Cash Purchase Price and other amounts payable by Buyer to the payment of Taxes) of any Asset Selling Subsidiary relating Seller Parties pursuant to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(ithis Agreement);
(jkk) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) goodwill relating to the Liquid Finishing Acquired Business;
; and (kll) all goodwill avoidance actions (if any) under Chapter 5 of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
Bankruptcy Code (lincluding Actions under section 544, 545, 547, 548, 549 or 550 thereof) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
against (mi) the Assigned Section 6.2(gAcquired Companies or (ii) Rights and BenefitsBuyer, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesParent or their Affiliates.
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions of this Agreement, at on the ClosingClosing Date, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, Seller agrees to sell, convey, transfer transfer, assign and deliver to Purchasersdeliver, and Purchaser Parent cause its Subsidiaries to sell, convey, transfer, assign and US Purchaser shalldeliver, to Buyer and Buyer’s designated Affiliates, and shall Buyer agrees to purchase and cause Purchasers to, its designated Affiliates to purchase and accept from Sellers, free Seller and clear of any Liens (except for Permitted Liens)its Subsidiaries, all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), Seller’s and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling its Subsidiaries’ right, title and interest in and to the followingfollowing assets, except to properties, rights, contracts and claims of Seller or its Subsidiaries that are owned, leased or licensed by Seller or its Subsidiaries on the extent constituting Closing Date and used in the Acquired Business (other than the Excluded Assets:), in each case free and clear of all Encumbrances other than Permitted Encumbrances (collectively, the “Acquired Assets”):
(a) all inventories of finished goods, including any such items in transit on the Seller Owned Real PropertyClosing Date, together with all buildingsrelated exclusively to the Business (collectively, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining“Inventory”);
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party those items of machinery and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security equipment and other depositstangible personal property listed on Schedule 2.01(b) and, common-area-maintenance refundsexcept as set forth on Schedule 3.09, adjustmentsall other machinery and equipment used exclusively in the manufacturing of the Products (collectively, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesthe “Equipment”);
(c) accounts receivable the following intellectual property assets (includingcollectively, but not limited tothe “Business Intellectual Property”):
(i) the registered trademarks and trademark applications listed on Schedule 2.01(c)(i), together with associated goodwill (the “Trademarks”);
(ii) all unregistered trademarks, service marks, trade dress and trade names, in each case related exclusively to the Business, together with associated goodwill;
(iii) all copyrights, all Extra-Liquid Finishing Business Intercompany Accounts Receivable)current product formulations, notes receivableall raw material, prepaid expensesmanufacturing, prepayments by customersprocessing, packaging, labeling, quality assurance and other specifications, and deposits held by any Asset Selling Subsidiary relating all current processing instructions, trade secrets, know-how and inventions, in each case related exclusively to the Liquid Finishing Acquired Business;
(iv) the patent application listed on Schedule 2.01(c)(iv) (the “Patent Application”); and
(v) the Internet domain names listed on Schedule 2.01(c)(v) and, to the extent transferable, the content appearing on ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇ related exclusively to the Business (the “Exclusive Content”); provided that the Exclusive Content shall be delivered by Seller no later than 60 days after the Closing Date.
(d) all tangible personal property commitments, agreements and orders (including machinerysubject to their terms and conditions) for the purchase of Products from Seller or any of its Subsidiaries that have not been shipped before the Closing Date (collectively, equipmentthe “Purchase Orders”), parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and toolsas well as the portion (to the extent severable) of any Asset Selling Subsidiary used in other purchase orders of Seller or its Subsidiaries relating to any of the Liquid Finishing BusinessProducts that have not been shipped before the Closing Date, includingand all rights to payments, but not limited to, all tooling, molds, dies prepayments and deposits for the Purchase Orders or such portion of such other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Propertiespurchase orders;
(e) the 3MExisting Co-Related Agreements Pack Agreement and all Contracts of any Asset Selling Subsidiary other contracts, leases, licenses, commitments or agreements (other than Purchase Orders) relating exclusively to the Liquid Finishing Acquired Business or the Products (the “Acquired Contracts”), including to the Contracts extent freely assignable or any required third-party consents to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), assignment are obtained but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if the Related Party Contracts (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) collectively, the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract“Assigned Contracts”);
(f) all Business Intellectual Property books and records to the extent exclusively related to the Acquired Business, whether in hard copy or electronic format, including technical information, computerized data, customer lists, vendor lists, service provider lists, sales and promotional literature, catalogs and advertising material, cost information, pricing and sales data, market surveys, purchase and sale records and correspondence for each Product, but excluding those described in Section 2.02(d) (collectively, the “Transferred Information”); provided, that, subject to Section 5.03, Seller may retain and use copies of the Asset Selling Subsidiaries, goodwill associated therewith, licenses Transferred Information for internal archival and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4reference purposes;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating UPC bar codes that are listed on Schedule 2.01(g), subject to the Liquid Finishing Business, to limitations set forth thereon (the extent transferable“Assigned UPC Codes”);
(h) all Books permits, approvals, authorizations, licenses or other registrations required by Governmental Authorities and Records used or held for use exclusively in the conduct of any Asset Selling Subsidiary relating the Acquired Business (collectively, “Permits”), if any, to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets)extent transferable; provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;and
(i) all claims, prepayments, prepaid expenses, refundsrights, causes of action, choses in action, rights of recovery, rights of set off, claims and rights of recoupment (including any such item relating credits to the payment extent related primarily to any Acquired Asset or any Assumed Liability from and after the Closing Date, including all guarantees, warranties, indemnities and similar rights in favor of Taxes) Seller or its Affiliates in respect of any Acquired Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of or any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesLiability.
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions of this Agreement, at the Initial Closing, Graco PC Buyer shall purchase, acquire and Graco US Finishing Brands shallaccept from CFC IPA, and CFC IPA shall cause Sellers to, sell, convey, assign, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens)PC Buyer, all assets, properties, rights, titles and interests of CFC IPA, whether tangible or intangible, real or personal and wherever located, including the following (all of IPA Business and the following being Enumerated Assets, but excluding the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) Excluded Assets (collectively, the “Acquired SubsidiariesAssets”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating tofree and clear of all Liens, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”other than Permitted Liens). Without limiting the generality of Notwithstanding the foregoing, CFC IPA may retain copies of any Contracts, documents, correspondence or records which are required to be retained pursuant to any Applicable Law or are subject to the Asset Selling Subsidiaries Acquired Assets include all attorney-client privilege, for financial reporting purposes, for Tax purposes, for legal defense or prosecution purposes or otherwise in connection with the Excluded Liabilities or the Excluded Assets. The Parties acknowledge and agree that CFC IPA shall have the right, in its sole discretion, to assign its right to receive fifty percent (50%) of the Asset Selling Subsidiaries’ rightBuyer Parent Shares to AMFIT, title and interest in and to the followingLLC, except to the extent constituting Excluded Assets:
a Delaware limited liability company (a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired ContractsAMFIT”), including and the Contracts remaining fifty percent (50%) to which any Asset Selling Subsidiary is MMFIT, LLC, a party Delaware limited liability company (“MMFIT,” and together with AMFIT, the “Buyer Parent Shares Transferees”) pursuant to assignment agreements each substantially in the form attached as set forth on Schedule 4.10(e)Exhibit E hereto and that, but excluding any Contract subject to which any Asset Selling Subsidiary is a party the immediately succeeding sentence and compliance with Section 12.4 and the execution of such assignment agreements, the Buyer Parent Shares shall be issued to such parties. Prior to the Initial Closing, in the event that is not disclosed in Schedule 4.11 if CFC IPA assigns its rights pursuant to the preceding sentence, CFC IPA shall cause to be delivered to the Buyer Parties (i) such non-disclosure constitutes a misrepresentation under Section 4.11 joinders to this Agreement each substantially in the form attached as Exhibit F hereto and executed by each of the Buyer Parent Share Transferees and (ii) a legal opinion of counsel substantially in the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco form attached as Exhibit G hereto that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property the transfers of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights Buyer Parent Shares by CFC IPA to protection of interests therein the Buyer Parent Share Transferees via assignments referenced in the preceding sentence are exempt from registration under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesSecurities Act.
Appears in 1 contract
Sources: Asset and Equity Purchase Agreement (Apollo Medical Holdings, Inc.)
Acquired Assets. On Upon the terms and subject to the conditions set forth in this Agreement and on the basis of this Agreementthe representations, warranties, covenants and agreements herein contained, at the applicable Closing, Graco Purchaser shall purchase, acquire and Graco US Finishing Brands shallaccept from Seller, and Seller shall cause Sellers to, sell, conveytransfer, transfer assign, convey and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens)Purchaser, all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ its right, title and interest in and to the followingall of its properties, except assets, rights and interests (whether tangible or intangible) of any kind, nature, character and description relating to the extent constituting Excluded applicable Acquired Properties, whether real, personal or mixed, whether accrued, contingent or otherwise, which are owned, leased or otherwise held by Seller (collectively, the “Acquired Assets”), free and clear of all Encumbrances other than Permitted Encumbrances. The Acquired Assets shall include, without limitation, the following items:
(a) all Accounts Receivable or portions thereof relating to the Acquired Properties that are attributable to services rendered at the Acquired Properties after the applicable Closing Date (it being understood that Seller Owned Real Property, together with shall retain all buildings, structures, installations, fixtures Accounts Receivable or portions thereof related to services rendered at the Acquired Properties up to and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingincluding the applicable Closing Date);
(b) all Inventory, Equipment and Machinery located at the Real Property Leases Acquired Properties used in connection with the provision of media services to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinthe Acquired Properties, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable all the assets listed on the Tangible Assets Schedule attached to any Asset Selling Subsidiary under or in respect of such leasesthis Agreement;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, Assigned Contracts and deposits held by any Asset Selling Subsidiary relating all rights thereunder to provide media services to the Liquid Finishing BusinessAcquired Properties, including all the Contracts listed on the Assigned Contracts Schedule attached to this Agreement;
(d) all tangible personal property (deposits and prepaid expenses relating to the Acquired Properties, including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers claims for refunds and tools) rights of any Asset Selling Subsidiary used offset in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Propertiesrespect thereof;
(e) All assignable Intangible Assets used in connection with the 3M-Related Agreements and all Contracts provision of any Asset Selling Subsidiary relating media services to the Liquid Finishing Business (the “Acquired Contracts”)Properties, including the Contracts assets listed on the Intangible Assets Schedule attached to which any Asset Selling Subsidiary is a party this Agreement, and assignments of all licenses related to Seller’s billing and provisioning systems as set forth on Schedule 4.10(eof the effective date of the Permanent Management Agreement (as defined below in Section 2.01(a), but excluding any Contract ) and subject to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contractvendor approval;
(f) all Business Intellectual Property of Files and Records relating to the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4Acquired Properties;
(g) all Licenses and Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing BusinessAcquired Properties, to the extent the same are transferable;; and
(h) all Books and Records claims of any Asset Selling Subsidiary Seller against third parties relating to the Liquid Finishing Business (except for Acquired Assets, whether c▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent, including insurance claims. Notwithstanding the Books and Records identified as Excluded Assets); providedforegoing, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claimsPurchaser shall not purchase the Acquired Assets related to any Acquired Property for which Seller receives a notice of non-renewal of the related R▇▇ Agreement prior to the Initial Closing (any such property, prepaymentsa “Terminated Property”), prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set offsuch Terminated Property shall not be considered an Acquired Property hereunder, and rights the Initial Purchase Price or Subsequent Purchase Price (as applicable) shall be reduced by an amount equal to $580 multiplied by the number of recoupment Subscribers included in such Terminated Property as set forth on either Exhibit B or Exhibit C, and (including ii) the transfer of the Acquired Assets pursuant to this Agreement shall not include the assumption of any such item relating Liability of Seller related to the payment of Taxes) of any Asset Selling Subsidiary relating Acquired Assets, unless Purchaser expressly assumes such Liability pursuant to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemes1.03.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mdu Communications International Inc)
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and Seller shall cause Sellers to, sell, convey, assign, transfer and deliver to PurchasersBuyer, and Purchaser Parent Buyer shall purchase and US Purchaser shall, and shall cause Purchasers to, purchase acquire from SellersSeller, free and clear of any Liens (except for Permitted Liens)Encumbrances, all of Seller’s right, title, and interest in, to, and under the following (all of the following being properties and assets of Seller to the “Acquired Assets”): (i) all extent that such properties and assets exist as of the equity ownership interestsClosing and primarily relate to the Business (other than the Excluded Assets), beneficial or otherwise, in the entities listed on Schedule 2.1(i) wherever located (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing) including, without limitation, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claimsSeller Books and Records, prepaymentsexcluding, prepaid expensesfor the avoidance of doubt, refundsthe Excluded Seller Books and Records;
(ii) all Tangible Personal Property identified on Schedule 1.1(a)(ii) (the “Transferred Tangible Personal Property”), causes excluding, for the avoidance of actiondoubt, choses in actionthe Excluded Tangible Personal Property;
(iii) all Seller Intellectual Property identified on Schedule 1.1(a)(iii) and Seller’s rights to damages for the infringement thereof (the “Transferred Seller Intellectual Property”), rights excluding, for the avoidance of recoverydoubt, rights of set offthe Excluded Seller Intellectual Property;
(iv) all Seller Contracts identified on Schedule 1.1(a)(iv)(A) (the “Transferred Contracts”), and all of the Seller’s rights thereunder, excluding, for the avoidance of recoupment (including any such item doubt, Seller’s rights thereunder relating to Accounts Receivable (other than Accounts Receivable identified on Schedule 1.1(a)(iv)(B) (such identified Accounts Receivable, the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i“Transferred Accounts Receivable”));
(jv) all inventory (including finished productsprepaid expenses, work in processcredits, raw materialsadvance payments, suppliessecurity deposits, spare parts, sums and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed fees identified on Schedule 2.1(l1.1(a)(v);
(mvi) all Governmental Authorizations identified on Schedule 1.1(a)(vi) (the Assigned Section 6.2(g) Rights and Benefits“Transferred Governmental Authorizations”), but only to the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefitsextent such Transferred Governmental Authorizations may be transferred under applicable Legal Requirement;
(nvii) all rights (to the extent they are primarily related to Business or the Acquired Assets) to any Retained Powder Finishing Business Account Receivable which is an asset Action, Proceeding or claim of Graco Australiaany nature available to or being pursued by Seller, whether arising by way of counterclaim or otherwise (excluding those relating to Excluded Assets or Excluded Liabilities); and
(oviii) all of the other assets held with respect to the Assumed Benefit Plans/Schemesidentified on Schedule 1.1(a)(vii).
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of this Agreementset forth herein, at the Closing, Graco and Graco US Finishing Brands shall, and Seller shall cause Sellers to, sell, conveytransfer, transfer assign, convey and deliver to PurchasersPurchaser, and Purchaser Parent shall purchase, acquire and US Purchaser shall, and shall cause Purchasers to, purchase accept from SellersSeller, free and clear of any Liens (except for Permitted and all Liens), all of the following (Seller’s right, title and interest in, to and under all of the following being assets, properties and rights of every kind and nature, whether real, personal or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired (other than the “Acquired Excluded Assets”): (i) all of ), which relate to, or are used or held for use in connection with, the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) Business (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;following:
(i) all claimsaccounts or notes receivable held by ALT (other than the Excluded Receivable (as defined below)), prepaymentsand any security, claim, remedy or other right related to any of the foregoing;
(ii) all inventory of ALT;
(iii) all Contracts of ALT, including the Material Contracts set forth on Section 3.8(a) of the Seller Disclosure Schedules, the IP Licenses set forth on Section 3.17(b) of the Seller Disclosure Schedules (but excluding any Contracts of ALT listed on Annex 2.1(b)) (the “Assigned Contracts”);
(iv) all Seller Intellectual Property and Seller Technology;
(v) all furniture, fixtures, equipment, machinery, tools, vehicles, office equipment, supplies, computers, telephones and other tangible personal property of ALT;
(vi) all Permits that are held by Seller and required for the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets, in each case to the extent transferable ;
(vii) all rights to any Claims of any nature available to or being pursued by Seller to the extent related to the Business, the Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise;
(viii) all prepaid expenses, credits, advance payments, claims, security, refunds (other than Tax or tariff refunds, causes of action, choses in action), rights of recovery, rights of set set-off, and rights of recoupment recoupment, deposits, charges, sums and fees (including excluding any such item relating to the payment of Taxes) Taxes of any Asset Selling Subsidiary relating to of the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(iSeller Parties);
(jix) all inventory (including finished productsof Seller’s rights under warranties, work in process, raw materials, supplies, spare parts, indemnities and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating all similar rights against third parties to the Liquid Finishing Businessextent related to any Acquired Assets;
(kx) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco AustraliaRecords; and
(oxi) all assets held with respect to goodwill and the Assumed Benefit Plans/Schemesgoing concern value of the Business.
Appears in 1 contract
Acquired Assets. On (a) Subject to the terms and subject to the conditions set forth in this Agreement and on the basis of this Agreementthe representations and warranties herein, at the Closing, Graco and Graco US Finishing Brands shall, and Seller shall cause Sellers to, sell, convey, transfer transfer, assign and deliver to PurchasersBuyer and Buyer shall purchase, receive and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase accept from Sellers, free and clear of any Liens (except for Permitted Liens), Seller all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the followingassets and properties of every kind, except character and description (other than property and rights specifically excluded in this Agreement), owned or leased by Seller and used in the operation and management of the Business, or otherwise for the benefit of the Business, whether tangible, intangible, real, personal or mixed, movable or fixed, and wherever located (collectively referred to hereinafter as the “Acquired Assets”).
(b) With the exception of the Excluded Assets, the Acquired Assets include all tangible property, accounts (including accounts receivable), machinery, equipment, inventories, tenant improvements (regardless of whether they are accounted for as an asset on the books of Seller), goodwill of the Business, software and computer programs, hardware, Intellectual Property (including the names “Specialty Hospital” and “SHA” and all other trade names and acronyms under which Seller conducts the Business or by which Seller or the Business is commonly known), prepaid expenses (other than insurance or prepaid other assets) and deposits, Assigned Contracts, Assigned Personal Property Leases, books and records (including all patient charts and records, patient lists and appointment books relating to patients treated by the Business to the extent constituting Excluded Assets:
transferable under applicable law), any Seller policies and procedures relating to the Business, telephone and facsimile numbers, all Licenses and permits (aincluding drug and nuclear licenses) to the Seller extent transferable to Buyer, any federal, state, or local Medicare provider numbers and Certificates of Need (“CON”) as listed on Schedule 1.1 hereto, in each case to the extent transferable or otherwise capable of being assumed, sold and assigned, the Regulatory Agreements, the Owned Real Property, together with all buildingsbenefits, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, proceeds and other amounts now or hereafter payable under any Seller policy of insurance relating to any Asset Selling Subsidiary under or in respect the Business, and proceeds of such leases;all of the foregoing assets.
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries The Acquired Assets shall include originals substantially all of such Books and Records the assets of Seller that are subject to the Liens securing the Prepetition Loan Facilities and the applicable Asset Selling Subsidiary shall be entitled to retain copies DIP Facility. Case 14-00279 Doc 478 Filed 08/15/14 Entered 08/15/14 16:29:05 Desc Main Document Page 9 of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans111 692183/15/Schemes.PHOENIX
Appears in 1 contract
Sources: Asset Purchase Agreement
Acquired Assets. On the terms and subject to the conditions of contained in this Agreement, Buyer shall, at the Closing, Graco purchase and Graco US Finishing Brands acquire from Seller and ▇▇▇▇▇▇▇ Mexico, and Seller shall, and shall cause Sellers ▇▇▇▇▇▇▇ Mexico to, sellat the Closing, convey, assign, transfer and deliver deliver, to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), Buyer all of Seller’s right, title and interest, whether tangible, intangible, real or personal and wherever located, in the following assets (all of the following being collectively, the “Acquired Assets”): ):
(i) subject to Section 1.8, all Contracts relating to the Business, including (A) those Contracts described on Schedule 2.5, and (B) all other Contracts entered into by Seller in the Ordinary Course of Business of the equity ownership interests, beneficial kind required to be disclosed on Schedule 2.5 that are not so disclosed because they fall below the minimum thresholds (or otherwiseother minimum criteria) set forth in Schedule 2.5 or are entered into after the date hereof but prior to the Closing Date, in each case, other than the entities listed Excluded Contracts (all Contracts described to be included in this Section 1.1(a)(i), the “Assumed Contracts”);
(ii) subject to any limitations under applicable Law, all Books and Records that relate primarily to the Business, other than Seller’s Tax Returns and related notes, worksheets, files and documents relating thereto;
(iii) all Business Intellectual Property and all Intellectual Property Licenses (collectively, the “Transferred Intellectual Property”);
(iv) all prepayments, prepaid expenses and other similar credits to the extent relating to the Business;
(v) all claims, causes of action, rights of recovery (including under any of the Available Insurance Policies in accordance with Section 4.7), rights of set-off and rights of recoupment to the extent relating to the Business;
(vi) all Authorizations relating to the Business, including the site-specific Authorizations of the Owned Real Property, in each case, to the extent such Authorizations may be transferred to Buyer under applicable Law and by the terms of such Authorizations (the “Transferred Authorizations”);
(vii) all goodwill generated primarily by, and associated primarily with, the Business as a going concern;
(viii) all notes, accounts receivable (including unbilled receivables) and other rights to payment and the full benefit of all security for such rights to payment arising from Products/Services shipped or rendered to any of Seller’s customers (collectively, the “Transferred Receivables”);
(ix) with respect to the Business, all inventories of raw materials, work-in-process and finished goods (including prepaid inventory and all such inventory in transit, whether to, or from, Seller), and all spare, service and repair parts, supplies and components held for sale, together with related packaging materials (collectively, the “Inventory”);
(x) all equipment, hardware, furniture, furnishings, fixtures, machinery, vehicles, tools and other tangible personal property relating to or held or used by the Business, other than Excluded Equipment;
(xi) the Owned Real Property; and
(xii) the assets set forth on Schedule 2.1(iExhibit 1.1(a)(xii) (collectively, the “Acquired Subsidiaries”), each of which is a whollyNon-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired U.S. Business Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemes.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and Closing the Seller shall cause Sellers to, sell, conveyassign, transfer and deliver to Purchasersthe Purchaser, and the Purchaser Parent shall purchase, all properties, assets, rights and US Purchaser shallinterests of every kind and nature, whether tangible or intangible, and shall cause Purchasers towherever located and by whomever possessed, purchase from Sellers, free owned by the Seller and clear of any Liens (except for Permitted Liens), all related to the Business as of the following (all of the following being the “Acquired Assets”): (iClosing Date, except as set forth in Section 2.1(b) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) below (collectively, the “"Acquired Subsidiaries”Assets"), each of which is a wholly-owned direct or indirect Subsidiary of Graco; including, without limitation (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating related to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;):
(i) all claimsProprietary Rights, prepaymentsalong with all income, royalties, damages and payments due or payable as of the Closing or thereafter, including, without limitation, damages and payments for past, present or future infringements or misappropriations thereof, the right to ▇▇▇ and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world;
(ii) all of the Seller's rights existing under leases, contracts, licenses, permits, distribution arrangements, sales and purchase agreements, other agreements and business arrangements, including, without limitation, all contracts and agreements described on the Contracts Schedule attached hereto;
(iii) all real property owned or leased by the Seller, and all plants, buildings and other improvements located on such owned or leased property, and all easements, licenses, rights of way, permits and all appurtenances to such owned or leased property, including, without limitation, all appurtenant rights in and to public streets, whether or not vacated (collectively, the "Real Property");
(iv) all leasehold improvements and all machinery, equipment (including all transportation and office equipment), fixtures, trade fixtures, tools, dyes and furniture owned by the Seller wherever located, including, without limitation, all such items which are located in any building, warehouse, office or other space leased, owned or occupied by the Seller or used in connection with the Real Property;
(v) all rental equipment of any kind, wherever located, rented by the Seller to or from any Person;
(vi) all inventories of work in process, semi-finished and finished goods, stores, replacement and spare parts, packaging materials, operating supplies, and fuels;
(vii) all office supplies, production supplies, spare parts, other miscellaneous supplies, and other tangible property of any kind wherever located, including, without limitation, all property of any kind located in any building, office or other space leased, owned or occupied by the Seller or in any warehouse where any of the Seller's properties and assets may be situated;
(viii) all prepayments and prepaid expenses;
(ix) except as specified in Section 2.1(b) below, refundsall of the Seller's claims, causes of action, choses in action, rights of recovery, rights of set off, recovery and rights of recoupment (including any such item relating to the payment of Taxes) set-off of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i)kind;
(jx) all inventory (including finished products, work in process, raw materials, supplies, spare parts, the right to receive and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Businessretain mail and other communications;
(kxi) all goodwill the right to ▇▇▇▇ and receive payment for products shipped or delivered and services performed but unbilled as of any Asset Selling Subsidiary relating to the Liquid Finishing BusinessClosing;
(lxii) all tangible personal property lists, records and other information pertaining to accounts, personnel and referral sources, all lists and records pertaining to suppliers and customers, and all books, ledgers, files and business records of any Asset Selling Subsidiary listed on Schedule 2.1(l)every kind, whether evidenced in writing, electronically (including, without limitation, by computer) or otherwise;
(mxiii) the Assigned Section 6.2(g) Rights all advertising, marketing and Benefits, the Assigned Transition Services Rights promotional materials and Benefits and the Assigned Transitional Trademark License Rights and Benefitsall other printed or written materials;
(nxiv) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; andall permits, licenses, certifications and approvals from all permitting, licensing, accrediting and certifying agencies, and the rights to all data and records held by such permitting, licensing and certifying agencies;
(oxv) all assets held with respect to telephone numbers (e.g. "800" numbers) used by the Assumed Benefit Plans/Schemes.Seller;
Appears in 1 contract
Acquired Assets. On If a Transaction Document provides for Acquired Assets, Sears agrees to convey (or shall cause the terms and applicable Eligible Recipient to convey) to CSC (either directly or through an Table of Contents entity purchase transaction mutually approved by the Parties), subject to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallCSC receiving any Required Consents, and CSC agrees (or shall cause Sellers toan Affiliate to agree) to accept, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear as of any Liens (except for Permitted Liens)the applicable Commencement Date, all of Sears’ (or the following (all of the following being the “Acquired Assets”): (iapplicable Eligible Recipient’s) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the followingAcquired Assets specified in the applicable Transaction Document (or entity purchase transaction document). In consideration for such conveyance, except to CSC shall pay Sears on the extent constituting Excluded Assets:
Commencement Date the Acquired Assets Credit specified in the applicable Transaction Document (a) the Seller Owned Real Propertyor entity purchase transaction document). In addition, together with CSC shall be responsible for, and shall pay, or provide evidence of exemption from, all buildingssales, structuresuse, installationsEquipment, fixtures Software or other goods and services and other improvements situated thereon and all easements, rights similar taxes arising out of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect conveyance of such leases;
Acquired Assets. Subject to CSC receiving any Required Consents, Sears represents and warrants to CSC that CSC (cor its Affiliates) accounts receivable shall take good title to such Acquired Assets as of the Commencement Date, free and clear of all liens. Except as otherwise expressly provided in this Section 10.2 (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts ReceivableAcquired Assets), notes receivableSEARS CONVEYS ACQUIRED ASSETS TO CSC ON AN “AS IS,” “WHERE IS” AND “WITH ALL FAULTS” BASIS. SEARS HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, prepaid expensesWITH RESPECT TO ACQUIRED ASSETS, prepayments by customersOR THE CONDITION OR SUITABILITY OF SUCH ACQUIRED ASSETS FOR USE BY CSC TO PROVIDE THE SERVICES, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machineryINCLUDING WARRANTIES OF NON-INFRINGEMENT, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Appears in 1 contract
Acquired Assets. On the terms and subject to the conditions set forth in this Agreement and subject to approval of this Agreementthe Bankruptcy Court pursuant to Sections 105, 363 and 365 of Bankruptcy Code, at the ClosingClosing the Seller shall sell, Graco and Graco US Finishing Brands shallassign, and shall cause Sellers to, selltransfer, convey, transfer and deliver to Purchasersdeliver, and Purchaser Parent cause its Affiliates (including any Selling Sub) to sell, assign, transfer, convey and US Purchaser shalldeliver, and shall cause Purchasers to, purchase from Sellersto the Purchaser, free and clear of all liens, claims, and encumbrances of any Liens (nature except for Permitted Liens)Exceptions, and the Purchaser shall purchase and accept from the Seller and the Selling Subs:
(a) all right, title and interest of the following Seller and of each Selling Sub in and to the Interests;
(b) all right, title, and interest of the following being Seller and its Affiliates in and to any and all assets of every kind and description, whether tangible or intangible, real, personal or mixed, wherever situated, owned, held or used by the “Acquired Assets”): Seller or its Affiliates (iincluding any Selling Sub) all of or in which the equity ownership interestsSeller or its Affiliates (including any Selling Sub) has any right, beneficial title or otherwiseinterest that is owned, directly or indirectly, leased or otherwise held primarily for use in the entities listed on Schedule 2.1(i) Business, except for Excluded Assets, (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries "Acquired Assets”"). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include shall include:
(i) all billed and unbilled accounts receivable (including income earned in advance), notes receivable and other evidences of indebtedness of any Person (other than the Seller or any subsidiary of the Seller) and rights to receive payments from any Person (other than the Seller or any subsidiary of the Seller), includ- ing without limitation any rights or claims with respect to third-party collection procedures to the extent arising out of the operation of the Business (the "Accounts Receivable");
(ii) all rights and incidents of interest of the Seller and of each Selling Sub to:
(A) all of the Asset master technology services agreements, master agreements, master business continuity agreements, professional services agreements, web hosting agree ments, software licensing agreements, schedules and supplements thereto, oral or written (the "Customer Contracts"), between the Seller (or one of the Selling Subsidiaries’ rightSubs) and a customer primarily relating to the Business, title including without limitation such of the foregoing as are listed or described on Schedule 1.1(b)(ii)(A);
(B) all of the agreements, contracts and interest in arrangements, oral or written, between the Seller (or one of the Selling Subs) and a vendor or other third party providing goods or services including strategic alliances primarily relating to the Business ("Vendor Agreements"), including without limitation such of the foregoing as are listed or described on Schedule 1.1(b)(ii)(B) , but excluding those Vendor Agreements to the extent they relate solely to the leased real property at King of Prussia, PA, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇, ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ and Newark, NJ ("Excluded Facilities"), regardless of whether listed or described on Schedule 1.1(b)(ii)(B); and
(C) all of the agreements, contracts and arrangements between the Seller (or one of the Selling Subs) and the past and current employees but only to the extent relating to confidentiality, assignment of invention or non-competition relating to the Business and to the followingextent assignable;
(iii) all Tangible Personal Property owned by, except or on order to be delivered to, the extent constituting Excluded Assets:
Seller or a Selling Sub, that is used primarily in the operation of the Business including, without limitation, (a) the Seller Tangible Personal Property located on, or to be delivered to, any Owned Real PropertyProperty or premises subject to the Property Leases or premises of a customer of the Business or at an Excluded Facility and (b) such of the foregoing as are listed or described on Schedule 1.1(b)(iii);
(iv) all Intellectual Property used primarily in the operation of the Business, including without limitation the Intellectual Property listed or described in Schedule 1.1(b)(iv) and all causes of action resulting from any infringement or violation thereof (together with all Intellectual Property of the Transferred Subs, the "Acquired Intellectual Property"); provided that, Purchaser hereby grants to the Seller as of the Closing Date a perpetual, royalty-free license to the Contract Admin software and the Prosper software on an "as is" basis with no warranty, for internal purposes;
(v) all rights and claims relating primarily to the Business, including rights and claims under all warranties, representations and guarantees made by suppliers, manufacturers and contractors in connection with the Acquired Assets;
(vi) (A) land described on Schedule 1.1(b)(vi)(A) and all buildings, structures, installations, fixtures and other improvements situated and fixtures thereon and all easements, rights of way and other rights, interests and appurtenances relating thereto (the "Owned Real Property"), (B) the real property leases and subleases used primarily in the operation of any Asset Selling Subsidiary therein the Business that are listed or thereunto pertainingdescribed in Schedule 1.1(b)(vi)(B) (the "Property Leases"); (C) the leases and subleases that are listed and described on Schedule 1.1(b)(vi)(C) and (D) the service agreements primarily relating to the Real Property;
(bvii) to the extent transferrable, all Permits issued to Seller or a Selling Sub by any Governmental Entity primarily relating to the operation of the Business, including without limitation such of the foregoing as are listed or described on Schedule 1.1(b)(vii), and all Permits relating to the ownership, use, operation and construction of the Owned Real Property Leases to which any Asset Selling Subsidiary and the property that is a party and all interests the subject of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesthe Property Leases;
(cviii) the preferred and common stock, warrants and other equity interests or investments that are listed or described on Schedule 1.1(b)(viii);
(ix) the bank accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary lockbox arrangements primarily relating to the Liquid Finishing Business that are listed or described on Schedule 1.1(b)(ix) (excluding all rights or incidents of interest with respect to the cash or cash equivalents in such bank accounts or lock box arrangements prior to and as of the Closing Date);
(x) all prepaid items or deposits (including without limitation real property security deposits for real property included in the Acquired Assets whether or not listed or described on Schedule 1.1(b)(x)) existing on the Effective Date relating to the Business that are listed or described on Schedule 1.1(b)(x) or that relate primarily to the Business arising in the ordinary course after the Effective Date;
(xi) all goodwill primarily related to the Business;
(dxii) all tangible personal property books and records of the Seller and the Selling Subs primarily relating to the operation of the Business and reasonably required by the Seller for the operation of the Business, and which do not pertain to areas of the Seller's business other than the Business, including without limitation all employment records (including machinerywith respect to the Transferred Employees and subject to applicable privacy laws), equipmentsales and business records, partscustomer and supplier lists, goodsadvertising and promotional materials, furniturefiles, furnishingsindices, hardwaremarket research studies, computersanalyses and similar information, automobilesmarketing brochures and materials and other nonproprietary printed or written materials in any form or medium relating to the ownership or operation of the Business that the Seller is not required by law to retain (of which the Seller may retain duplicates), trucks, tractors, trailers and tools) duplicates of any Asset Selling Subsidiary used such materials that the Seller is required by law to retain;
(xiii) all other assets reflected on the Financial Statements (other than assets disposed of since the date thereof in the Liquid Finishing Businessordinary course and as permitted under this Agreement) and all other assets obtained since the date of the latest Financial Statements that would have been reflected in the Financial Statements had they been owned at the time of such Financial Statements;
(xiv) all documents, plans, data, books, records, software and other similar items relating to the Real Property in the possession or control of the Seller, including, but not limited towithout limitation, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claimsas built plans, prepaymentsspecifications and drawings for the Real Property, prepaid expenses(ii) all manuals, refundsdiagrams, causes shop drawings, warranties and related data concerning the Real Property and the use, maintenance and operation of actionthe systems and facilities related thereto, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating iii) keys to the payment of Taxesimprovements on the Real Property, (iv) of any Asset Selling Subsidiary relating security codes, passwords and identification numbers pertaining to the Liquid Finishing operation of the Real Property, (v) books and records of the Seller pertaining to the operation, ownership, leasing, maintenance and use of the Real Property, including, without limitation, books and records with respect to payment and reconciliation of additional rent paid by tenants or subtenants under any of the Leases and paid by the Seller, as tenant or subtenant, under any of the Property Leases; and (vi) all computer software and computer files required to operate the building systems and security systems for Real Property;
(xv) all Databases owned or leased by the Seller or a Selling Sub that are used primarily in the Business;
(xvi) all the rights, except for the Excluded Assets properties or assets that are listed or described in Sections 2.2(h) and 2.2(ion Schedule 1.1(b)(xvi);
(jxvii) all inventory rights of subrogation in respect of the Assumed SIP Guarantees (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l"Transferred Subrogation Rights");
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(oxviii) all assets held with respect intercompany accounts receivable (A) owed by a Transferred Sub to the Assumed Benefit Plans/SchemesSeller or its Affiliate or (B) owed by a division of Seller to another division of Seller arising from the operation of the Business.
Appears in 1 contract
Acquired Assets. On At the Closing, the Seller shall sell, transfer, assign, convey and deliver to the Buyer, and the Buyer shall purchase, acquire and accept from the Seller, subject to and upon the terms and subject to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens Lien (except for Permitted Liensthe Assumed Liabilities), all of the following (right, title and interest of the Seller in and to all of the following being the “Acquired Assets”): (i) all assets and properties of the equity ownership interests, beneficial or otherwise, Seller used exclusively in the entities listed on Schedule 2.1(i) Business and located at the Seller’s location in Haverhill, Massachusetts, including, without limitation, the following assets and properties (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting ) but excluding the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) All Products, machinery, equipment, tooling, and other fixed tangible assets of the Seller Owned Real Propertylisted on Schedule 2.1(a) (collectively, together with the “Tangible Assets”), including all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights such assets on the Premises on the date of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingthe Closing;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinAll raw material, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustmentswork in process, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect finished product inventory of such leasesthe Seller listed on Schedule 2.1(b) (collectively, the “Inventory”);
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing All Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;Intellectual Property,
(d) all tangible personal All rights of the Seller and its Affiliates under the real property lease identified on Schedule 2.1(d) (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller“Real Property Lease”), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) All rights of the 3M-Related Agreements Seller under all purchase orders, order backlog, supply, manufacturing, OEM, sourcing and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”distribution agreements with suppliers and customers listed on Schedule 2.1(e), including all rights to the Contracts revenue therefrom paid by the customer after the Closing (subject to which any Asset Selling Subsidiary is a party as set forth Section 2.2(b) below), and all rights of the Seller under all supplier and customer purchase orders relating exclusively to the Business, including those listed on Schedule 4.10(e2.1(e) (collectively, the “Operating Agreements”) (except to the extent any such rights are designated as Excluded Assets), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property All rights of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained Seller under all agreements with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as independent sales representatives listed on Schedule 1.2(a2.1(f) or Schedule 1.4(collectively, “Sales Representative Agreements”);
(g) all Permits issued to or held by any Asset Selling Subsidiary and All rights of the Seller relating to the Liquid Finishing Business, FCC and Industry Canada certifications relating to the extent transferableGigaLink radios as listed on Schedule 2.1(g);
(h) all Books and Records All prepaid expenses of any Asset Selling Subsidiary the Seller relating exclusively to the Liquid Finishing Business set forth on Schedule 2.1(h);
(except for i) All customer lists, files and records that are located at the Books and Records identified as Excluded Assets)Seller’s premises in Haverhill, Massachusetts; provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary Seller shall be entitled to retain copies of all such Books materials and Recordsthat the Buyer shall make all such materials available for inspection and copying by the Seller or its Affiliates after the Closing, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses as more fully set forth in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(iSection 6.3(b);
(j) all inventory (including finished productsThe telephone, work in process, raw materials, supplies, spare partsfacsimile and other communication lines and numbers, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;Internet domain names, as listed on Schedule 2.1(j); and
(k) all goodwill All of any Asset Selling Subsidiary relating the Seller’s books and records related exclusively to the Liquid Finishing Business;
(l) Acquired Assets; provided, however, that the Seller shall be entitled to retain copies of all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(lsuch materials and that the Buyer shall make all such books and records available for inspection and copying by the Seller and its Affiliates after the Closing, as more fully set forth in Section 6.3(b);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemes.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallParent agrees to cause Buyer to acquire from Seller, and shall cause Sellers toBuyer agrees to acquire from Seller, and Seller agrees to sell, conveytransfer, transfer assign and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from SellersBuyer, free and clear of any all Liens (except for other than Permitted Liens), all of Seller’s right, title and interest in, to and under the following (all of assets, as the following being same shall exist on the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) Closing Date (collectively, the “Acquired SubsidiariesTransferred Assets”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) provided that the rights under such Contracts as are assets set forth on Schedule 2.1(iiin clause (s) (the below shall be a “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except Transferred Asset” only for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality purposes of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:this Article II):
(a) all collateral materials, brochures, manuals, promotional materials, sales materials, display materials and product information materials related exclusively to the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingBusiness;
(b) all of the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests Equipment (including those items listed on Section 2.01(b) of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesthe Disclosure Letter);
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating Contracts that are exclusively related to the Liquid Finishing Business and are currently used in the operation of the Business, including the Contracts listed on Section 2.01(c) of the Disclosure Letter (the “Assumed Contracts”);
(d) all tangible personal property (including machinerythe real estate leases, equipmentsubleases, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers unattached trade fixtures and toolsleasehold improvements for Leased Real Property that are listed on Section 2.01(d) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative PropertiesDisclosure Letter;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired ContractTransferred Domain Names;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4Transferred Trade Secrets;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferableTransferred Copyrights;
(h) all Books the Transferred Trademarks and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesassociated goodwill;
(i) all claimsPermits used exclusively in the Business and not otherwise required or used by Seller or its Subsidiaries outside of the Business, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating but only to the payment of Taxes) of any Asset Selling Subsidiary relating extent transferable or assignable without additional cost to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(iSeller or its Subsidiaries (other than nominal administrative filing fees which shall be paid by Seller);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing BusinessAccounts Receivable;
(k) all goodwill of any Asset Selling Subsidiary relating Seller Deposits associated with Assumed Contracts or other Transferred Assets, or related to the Liquid Finishing Businessother Assumed Liabilities;
(l) all tangible personal property Prepayments associated with Assumed Contracts or other Transferred Assets, or related to other Assumed Liabilities, subject to the proration provisions of any Asset Selling Subsidiary listed on Schedule 2.1(lSection 5.10(a);
(m) all lists of current customers, suppliers, resellers and material vendors of the Assigned Section 6.2(g) Rights Business and Benefitsall maintenance, the Assigned Transition Services Rights service and Benefits and the Assigned Transitional Trademark License Rights and Benefitssupport records for such current customers;
(n) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, c▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to the Closing Date which relate exclusively to the Business, Transferred Assets or Assumed Liabilities, exclusive of causes of action, claims and rights which Seller may have under any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; andinsurance contracts or policies insuring the Transferred Assets;
(o) all assets held Inventory;
(p) all confidentiality, nondisclosure and assignment of invention agreements entered into by Seller or any of its Subsidiaries with respect any Person other than current or former employees of the Business and relating exclusively to the Transferred Assets or the Assumed Benefit Plans/SchemesLiabilities and other than confidentiality and similar agreements entered into by Seller relating to a potential sale of the Business, the Transferred Assets or the Assumed Liabilities;
(q) all marketing documents, business records, customer maintenance, service and support records, programmer logs and correspondence, in whatever form (electronic, written or otherwise) related exclusively to the Business, the Transferred Assets or the Assumed Liabilities; provided that such books and records shall expressly not include documents, materials or information which are subject to attorney-client, work product or similar privilege or which were prepared in connection with the transactions contemplated by this Agreement or the sale of the Business, the Transferred Assets or the Assumed Liabilities (other than copies of the Unaudited Financial Statements and the Audited Financial Statements); and provided, further, that, subject to Section 5.03(b), Seller shall be permitted, but shall not be obligated, to retain copies of all such books and records which are Transferred Assets;
(r) all Software owned by Seller that (i) is embodied in the Products or (ii) used exclusively in the Business;
(s) all Intellectual Property rights embedded in, and all Software owned by Seller embodied in, the Legacy Products and the New Products;
(t) personnel records for each Transferred Employee who consents to the transfer of such personnel records;
(u) (i) copies of the Unaudited Financial Statements and the Audited Financial Statements and (ii) financial records related exclusively to the Business, the Transferred Assets or the Assumed Liabilities that in the ordinary course of business as of the date hereof are located at the Leased Real Property; provided that subject to Section 5.03(b), Seller shall be permitted, but shall not be obligated, to retain copies of all such records;
(v) all of the assets specifically identified on Section 2.01(v) of the Disclosure Letter; and
(w) all of Seller’s goodwill in, and going concern value of, the Business and the Transferred Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (Activant Solutions Inc /De/)
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at on the ClosingClosing Date, Graco and Graco US Finishing Brands shallSeller agrees to, and shall or to cause Sellers the other members of the Seller Group to, sell, conveyassign, transfer transfer, convey and deliver to PurchasersPurchaser or one or more of its Designated Affiliates, and Purchaser Parent agrees to purchase, acquire and US Purchaser shallaccept from the members of the Seller Group, or to cause one or more of its Designated Affiliates to purchase, acquire and shall cause Purchasers to, purchase accept from Sellersthe members of the Seller Group, free and clear of any all Liens (except for other than Permitted Liens), all of the following (all members of the following being the “Acquired Assets”): (i) all of the equity ownership interests, Seller Group’s legal and beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the followingfollowing assets, except properties, rights, contracts and claims, which are owned, leased or licensed by the members of the Seller Group on the Closing Date (collectively, the “Acquired Assets”):
(i) all Owned Real Property set forth on Schedule 5.7(i), together with the right, title and interest of the members of the Seller Group in and to all buildings, improvements, structures, facilities, fixtures and all other appurtenances thereto;
(ii) Leased Real Property of any member of the Seller Group, and all Leases entered into after the date of this Agreement and prior to the Closing Date in accordance with Section 8.2;
(iii) all inventories or raw materials, work-in-process, finished goods, parts, office and other supplies, packaging materials and other inventories of the Automotive Business to the extent constituting Excluded Assets:
reflected in Estimated Closing Working Capital, as the same may be adjusted in the Adjustment Statement (a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining“Inventory”);
(biv) all accounts receivable of the Real Property Leases Automotive Business to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinthe extent reflected in Estimated Closing Working Capital, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or as the same may be adjusted in respect of such leasesthe Adjustment Statement (the “Accounts Receivable”);
(cv) accounts receivable all furniture, fixtures, plant, tools (including, but not limited to, including all Extra-Liquid Finishing Business Intercompany Accounts ReceivableUnbilled Reimbursable Tooling Inventory), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers office and tools) other supplies and other items of any Asset Selling Subsidiary tangible personal property of the members of the Seller Group primarily related to or primarily used in the Liquid Finishing operation of the Automotive Business, including, but not limited to, all tooling, molds, dies and other equipment whether located on site at the Owned Real Property or Leased Real Property or stored or used off site in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as the ordinary course of October 23, 2008, by and among Graco US Finishing Brands the operation of the Automotive Business (as excluding the assignee of ITW Parent and ITW US Selleritems listed on Schedule 2.2(v), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands ) (as the assignee of ITW Parent and ITW US Seller“Personal Property”), 3M Company and 3M Innovative Properties;
(evi) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to Auto Intellectual Property other than the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired ContractExcluded Intellectual Property;
(fvii) to the extent their transfer is permitted under applicable Laws, (A) the Permits and (B) all Business Intellectual Property of such Permits obtained after the Asset Selling Subsidiaries, goodwill associated therewith, licenses date hereof and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights prior to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4Closing Date;
(gviii) all Permits issued to rights of members of the Seller Group under all Contracts used in or held by any Asset Selling Subsidiary for use in, or directed to the operation of the Automotive Business as currently conducted as of the Closing Date, and all such Contracts entered into after the date hereof and prior to the Closing Date in accordance with Section 8.2, other than Contracts with employees of the Automotive Business who are not Transferred Employees;
(ix) all books of account, financial and accounting records, files (including personnel files, workers’ compensation claim files and other employee books and records pertaining to Transferred Employees), invoices and supplier and customer lists relating to and used in, or held for use in, the Liquid Finishing Business, operation of the Automotive Business and owned by members of the Seller Group;
(x) any current prepaid expenses and other current assets of the Automotive Business to the extent transferablereflected in Estimated Closing Working Capital, as the same may be adjusted in the Adjustment Statement;
(hxi) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); providedrights, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, recoveries and rights of recoupment (including any such item reimbursement arising out of, relating to or otherwise in any way in respect of, the payment Acquired Assets or any Assumed Liability including all rights, guaranties, warranties, indemnities and similar rights in favor of Taxes) members of the Seller Group in respect of any Acquired Asset Selling Subsidiary relating or any Assumed Liability (but with respect to any tax refund claim, tax payment or tax reduction or credit related thereto, the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(hprovisions of Section 9.2(i) and 2.2(ishall apply);
(jxii) all inventory (including finished products, work in process, raw materials, supplies, spare partsrights of members of the Seller Group under the Collective Bargaining Agreements, and packaging materialsall Collective Bargaining Agreements entered into after the date hereof and prior to the Closing Date in accordance with Section 8.2;
(xiii) all rights of members of the Seller Group under operating leases relating to tangible personal property of members of the Seller Group related to or used in the possession operation of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Automotive Business;
(kxiv) all goodwill rights of any Asset Selling Subsidiary relating members of the Seller Group under all manufacturer and/or supplier warranties except to the Liquid Finishing Businessextent that obligations under such warranties are Excluded Liabilities;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(mxv) the Assigned assets related to Employee Benefit Plans contemplated to be transferred to and assumed by Purchaser in Section 6.2(g) Rights 6.1 and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset 6.2 of Graco Australiathis Agreement; and
(oxvi) all assets held with respect other assets, properties, rights and claims of such members of the Seller Group of any kind and nature primarily related to or primarily used in the Assumed Benefit Plans/Schemesoperation of the Automotive Business not otherwise described above.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, Seller agrees to sell, conveytransfer, transfer assign, convey and deliver to PurchasersPurchaser, and Purchaser Parent agrees to purchase, acquire and US Purchaser shallaccept from Seller, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens at the Closing (except for Permitted Liensas defined in Section 3.1), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ Seller's right, title and interest in and to the assets, rights and property used exclusively or primarily in or held for use by Seller exclusively or primarily in the operation of the PRENATE Business including, without limitation, the following, except to the extent constituting Excluded Assets:
(a) Seller's inventory, including the Seller Owned Real PropertySample Inventory (as defined in Section 2.2(b)) in existence at the Closing Date (as defined in Section 3.1) of finished goods for sale or use primarily in the operation of the PRENATE Business (the "Inventory", together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingwhich term shall not include Sample Inventory);
(b) Seller's inventory in existence at the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests Closing Date of any Asset Selling Subsidiary thereinpromotional materials, including real estate fixtures, leasehold improvements, security Sample Inventory and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesmedical education materials associated with the PRENATE Business;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to customer lists of the Liquid Finishing PRENATE Business;
(d) all tangible personal intellectual property rights owned or otherwise used by Seller primarily in connection with the PRENATE Business including: (i) registered or [***] - Confidential Treatment Requested unregistered trademarks, service marks, logos, trade dress, trade names and internet domain names (collectively, the "Trademarks") including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as those set forth on Schedule 4.10(e)1.1(e) annexed hereto, but excluding any Contract (ii) all trade secrets, inventions, know-how, processes, product specifications, designs, copyrights and formulae, whether patentable or unpatentable, and (iii) all Trademark applications;
(A) all right, title and interest in and under all contracts, agreements, open sales orders, enforceable arrangements and other commitments of Seller related to which any Asset Selling Subsidiary is a party that is not disclosed the PRENATE Business, including those set forth on Schedule 1.1(e)-1 annexed hereto and (B) all rights related to the PRENATE Business in and under the Multiproduct Contracts, including those set forth on Schedule 4.11 if 1.1(e)-2 annexed hereto. All contracts referred to under A and B of this Section 1.1(e) shall hereinafter be collectively referred to as the "Assigned Contracts". "Multiproduct Contracts" shall mean those Assigned Contracts containing rights or obligations relating to both (i) such non-disclosure constitutes products which form a misrepresentation under Section 4.11 part of the PRENATE Business and (ii) products which are not associated with the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing PRENATE Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemes.
Appears in 1 contract
Sources: Asset Purchase Agreement (First Horizon Pharmaceutical Corp)
Acquired Assets. On At the Closing, pursuant to the terms and subject to the conditions of set forth in this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, each Seller will sell, convey, transfer assign, transfer, contribute and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from SellersBuyer, free and clear of any Liens and all Encumbrances or Liabilities (except for Permitted Liensother than the Assumed Liabilities), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interestssuch Seller’s respective property, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the assets and rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and nature, whether real, personal or mixed, tangible or intangible, whether identifiable or contingent, wherever located, in each casewhether or not reflected on the respective books of the Sellers, relating to, to or used in, or arising out in connection with the conduct of the Liquid Finishing Business, except for including the following (but excluding the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:):
(a) the Seller Owned Real Propertyall leasehold or sub-leasehold estates, together with all licenses and other rights to use or occupy any land, buildings, structures, installationsimprovements, fixtures and or other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingin real property held by the Sellers;
(b) all fixed assets and other tangible personal property owned or leased by the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinSellers, including real estate all machinery, tools, equipment, computers, furniture, office equipment, telephone systems, fixtures, leasehold improvements, security supplies and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leasesvehicles;
(c) accounts receivable (includingall Inventory of the Sellers, but not limited towhether on hand, all Extra-Liquid Finishing Business Intercompany Accounts Receivable)or on order, notes receivable, prepaid expenses, prepayments by customers, and deposits in transit or held by any Asset Selling Subsidiary relating to the Liquid Finishing Businessothers on a consignment basis;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers Accounts Receivable of the Sellers and tools) of any Asset Selling Subsidiary used all claims arising in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Propertiesconnection therewith;
(e) the 3M-Related Agreements all amounts due from merchant credit processors to Sellers and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e)claims arising in connection therewith, but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired ContractMerchant Reserves;
(f) all Business Intellectual Property Contractual Obligations of the Asset Selling Subsidiaries, goodwill associated therewith, licenses Sellers (other than the Contractual Obligations included in the Excluded Assets as set forth in Section 1.1.2(e)) and sublicenses granted and obtained with respect all rights pursuant thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to goodwill, other intangible rights and property (including all Intellectual Property, Licenses, Company Systems and Company Technology) and causes of action, claims and rights of any kind as against others (whether by Contractual Obligation or held by any Asset Selling Subsidiary and otherwise) of the Sellers arising under or relating to the Liquid Finishing Business, to Business or any of the extent transferableother Acquired Assets or the Assumed Liabilities;
(h) all Books the Sellers’ books and Records records (financial, accounting and other), correspondence and all sales, marketing, advertising, packaging and promotional materials, customer lists, pricing lists, files, data, software, drawings, engineering and manufacturing data and other technical information and data, all personnel records of any Asset Selling Subsidiary the Transferred Employees and all other business and other records, in each case arising under or relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries other Acquired Assets shall include originals of such Books and Records and or the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesAssumed Liabilities;
(i) all claims, prepayments, prepaid expenses, refunds, causes Permits and all pending applications therefor and all rights and incidents of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item interest therein relating to the payment Business or any of Taxes) of any Asset Selling Subsidiary relating the other Acquired Assets or the Assumed Liabilities, excluding only such Permits to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(iextent not legally transferable (which non-transferrable Permits are identified on Schedule 1.1.1(i));
(j) all inventory (including finished productsany claims, work rights or interests of any Seller in processor to any deposits, raw materialsadvance payments, suppliescredits or charges, spare partsprepaid Taxes, and packaging materialsprepaid expenses including without limitation, (1) in the possession of security deposits with third party suppliers, vendors, service providers or landlords, and lease and rental payments, (2) rebates, abatements or other recoveries and (3) any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Businessother prepayments;
(k) all goodwill rights, claims, credits, causes of any Asset Selling Subsidiary action or rights of setoff against third parties, rights of recoupment, defenses, remedies and benefits of the Sellers arising under or relating to the Liquid Finishing BusinessBusiness or any of the other Acquired Assets or the Assumed Liabilities, including without limitation, rights under vendors’ and manufacturers’ warranties, indemnities and guaranties;
(l) to the extent assignable to Buyer under the terms of the applicable insurance policies without adversely impacting Sellers’ coverage and rights thereunder with respect to events, occurrences and other matters arising from the operations of the Business and ownership of the Assets on or prior to Closing, each Seller’s insurance policies and rights and benefits thereunder with respect to the Business or any of the other Acquired Assets or the Assumed Liabilities, including without limitation, (1) all tangible personal property rights pursuant to proceeds from such insurance policies, (2) all claims, demands, proceedings and causes of action asserted by any Asset Selling Subsidiary listed on Schedule 2.1(l)Seller under such insurance policies and (3) any letter of credit related thereto;
(m) all of the Assigned Section 6.2(g) Rights and BenefitsEquity Securities of Vapor Zone Franchising, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;LLC, a Delaware limited liability company (“Vapor Zone Franchising”), owned by International Vapor; and
(n) all other property and assets used in the conduct of the Business or the ownership of any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all the other Acquired Assets or the Assumed Liabilities. All the property and assets held with respect to be transferred to the Assumed Benefit Plans/SchemesBuyer hereunder are herein referred to collectively as the “Acquired Assets.”
Appears in 1 contract
Acquired Assets. On the terms and subject The Seller agrees to the conditions of this Agreementsell and, at the Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, sell, convey, will transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), the Buyer all of the following (all of improvements and personal property owned by the following being Seller and located on the “Acquired Real Property, including but not limited to the following, hereinafter referred to as the "Purchased Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ ":
a. All right, title and interest of the Seller in and to the following, except to improvements located on the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, the Store located thereon, subject to all Extra-Liquid Finishing Business Intercompany Accounts Receivable)rights of the Lessor to such assets in accordance with the Lease and the Assignment and Assumption Agreement.
b. All furniture, notes receivablefixtures, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machineryappliances, equipment, partscomputerized cash registers, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) supplies owned by the Seller and on hand at the Store as of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited todate hereof, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on the Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is of Equipment attached hereto as Exhibit B and made a party that is not disclosed in Schedule 4.11 if part hereof by reference (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Businesscollectively, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i"Equipment");
c. All inventory located at the Store on the date of closing and which shall be listed as the Schedule of Inventory at the time the inventory is taken and attached hereto as Exhibit C and made a part hereof (j) all inventory (including finished productscollectively, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l"Inventory");
(m) d. All right, title and interest of the Assigned Section 6.2(g) Rights Seller in or under the Lease and BenefitsAssignment and Assumption Agreement, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable a copy of which is an asset of Graco Australiaattached as Exhibit D and made a part hereof; and
(o) e. All right, title and interest of the Seller in or under all assets held with respect contracts, agreements, instruments, certificates, permits and licenses which relate to the Assumed Benefit Plans/SchemesEquipment, Inventory or Store, as set forth on the Schedule of Contracts attached hereto as Exhibit E and made a part hereof by reference (collectively, the "Contracts").
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject conditions hereof, the Company and the Associated Subsidiaries agree to sell to CNCO, and the conditions of this AgreementInvestor agrees to cause CNCO to purchase from the Company and the Associated Subsidiaries, at the Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens Closing (except for Permitted Liens), as defined in Section 2.1) all of the following (all right, title and interest of the following being Company and the “Acquired Associated Subsidiaries in and to the Business and all properties, assets and rights of every nature, kind and description of the Company and the Associated Subsidiaries used or held for use primarily in connection with the Business wherever located (collectively, other than the Retained Assets (as defined in Section 1.1(b) hereof), the "Assets”): "), including the following:
(i) all of the equity ownership interestsrights of the Company or any Associated Subsidiary to prepare, beneficial produce, publish, print, sell and/or distribute, as the case may be, the community newspapers and other publications which constitute the Business, together with the goodwill of or otherwise, relating to the Business;
(ii) all of the real property owned by the Company or any Associated Subsidiary and primarily used in the entities operation of the Business (the "Owned Real Property"), which Owned Real Property is listed on Schedule 2.1(i) 3.18 to the Disclosure Schedule (collectively, the “Acquired Subsidiaries”as defined in Section 3.1(a), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and all of the buildings, fixtures and improvements (the "Improvements") located in, on and under the Owned Real Property;
(iii) all of the assetsrights of the Company or any Associated Subsidiary in any real property leased or subleased by the Company or the Associated Subsidiaries and used primarily in the operation of the Business (the "Leased Real Property"), propertieswhich Leased Real Property is listed on Schedule 3.19 to the Disclosure Schedule, and all of the Improvements located in, on and under the Leased Real Property to the extent provided in the lease or sublease;
(iv) all of the materials, raw materials (including paper), supplies, work in progress and other inventory owned by the Company or any Associated Subsidiary and to the extent used or held for use in the operation of the Business;
(v) all rights of the Company or any Associated Subsidiary to fixed and other tangible personal property, whether owned or leased, including furniture, equipment, computers and related items, fixtures, machinery and tools owned by the Company or any Associated Subsidiary and primarily used in the operation of the Business;
(vi) all rights, claimssubscription rights, privilegesobligations and benefits of contracts, and interests licenses (whether the Company or any Associated Subsidiary is a licensee or licensor) or arrangements of the Asset Selling Subsidiaries Company or any Associated Subsidiary primarily relating to the Business and the Assets (collectively, the "Assumed Contracts"), including the items listed on Schedules 3.10(a) through (j) of every kind the Disclosure Schedule;
(vii) all files, books and character records of the Company or any Associated Subsidiary dating back at least five full fiscal years from the date of the Closing primarily relating to the Business (but not minute books and wherever locatedcorporate governance records of the Company and the Associated Subsidiaries) which are not physically located at the Owned Real Property or the Leased Real Property and all files, books and records of the Business which are physically located at the Owned Real Property or the Leased Real Property, including financial statements and records, advertising space reservations, advertising insertion orders, promotional materials, all available records of current and former advertisers in the newspapers and other publications which comprise the Business or relating to the Business; provided that the Company shall retain copies of all such files, books and records;
(viii) all credits, prepaid costs and expenses, deposits and retentions held by third parties under leases, licenses, contracts and other arrangements, in each casecase to the extent relating to the Business;
(ix) all current assets (except for cash and cash equivalents), but specifically including accounts receivable; provided that following the Effective Date (as defined in Section 2.1) CNCO shall have the right to assign certain accounts receivable to the Company in accordance with the terms of Section 1.3(g) of this Agreement;
(x) all subscription, distribution, circulation and mailing lists relating primarily to the Business and all records and data relating to such lists;
(xi) any available editorial and photographic morgues and any available back issues of the newspapers and other publications which comprise the Business;
(xii) all registered United States and foreign patents, trademarks, service marks, trade names, mastheads, copyrights and applications therefore set forth on Schedule 3.9 of the Disclosure Schedule (including rights to ▇▇▇ for and remedies against present and future infringements thereof and rights of priority and protection of interests) and the goodwill and going concern value related thereto;
(xiii) all licenses and permits of any government or state (or any subdivision thereof), whether domestic or foreign, or any agency, authority, bureau, commission, department or similar body or instrumentality thereof, or any governmental court or tribunal, federal, state and local ("Government Authority"), to the extent they are transferable, relating toprimarily to the Business or the Assets;
(xiv) all guaranties, used inwarranties, or arising out indemnities and similar rights in favor of the Liquid Finishing Company or any Associated Subsidiary to the extent related to the Assets or the Business; and
(xv) all rights of the Company or any Associated Subsidiary under any provision or covenant of any contract, agreement or understanding in favor of the Company or any Associated Subsidiary or their Affiliates to the extent relating to the Business limiting the ability of any party to sell any products or services, engage in any line of business or compete with or to obtain products or services from any person and any causes of action, lawsuits, claims and demands available to the Company or any Associated Subsidiary in respect of the foregoing whether arising before or after the Closing. The Assets shall be transferred free and clear of all liens, easements, licenses, possessory rights, sales contracts, building and use restrictions, reservations and limitations, encumbrances, security interests, charges, pledges, mortgages, deeds of trust, deed to secure debt, liabilities, debts, options or, to the best knowledge of the Company and the Associated Subsidiaries, any other adverse claims, restrictions or third party rights of any kind and nature whatsoever (the "Encumbrances"), except for the Excluded Assets following (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if "Permitted Encumbrances"): (i) such non-disclosure constitutes a misrepresentation under Section 4.11 liens for current Taxes not yet due and payable, (ii) the assumption encumbrances disclosed on Schedule 3.8(a) of such Contract the Disclosure Schedule, (iii) mechanics', carriers', workmen's, repairmen's or other like liens arising or incurred in the ordinary course of business, liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business, and which are routinely and regularly extinguished by any Purchaser wouldpayment of the charges to which they relate and which do not, individually or in such Purchaser’s reasonable determinationthe aggregate, materially impair the continued use and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property operation of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights assets to protection of interests therein under which they relate in the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, taken as a whole, as presently conducted or (iv) other imperfections of title or encumbrances, if any, which do not, individually or in the aggregate, materially impair the continued use and operation of the assets to which they relate in the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Recordstaken as a whole, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemesas presently conducted.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hollinger International Inc)
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and Closing Seller shall cause Sellers to, sell, conveyassign, transfer and deliver to PurchasersPurchaser, and Purchaser Parent shall purchase, all properties, assets, rights and US Purchaser shallinterests of every kind and nature, whether tangible or intangible, and shall cause Purchasers towherever located and by whomever possessed, purchase from Sellersowned by Seller as of the Closing Date, free and clear of any Liens except as set forth in Section 2.1(b) below (except for Permitted Lienscollectively, the "Acquired Assets"), all of the following (all of the following being the “Acquired Assets”): including, without limitation:
(i) all of the equity ownership interests, beneficial accounts and notes receivables (whether current or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”noncurrent), each of which is a wholly-owned direct or indirect Subsidiary of Graco; ;
(ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) all Investments (the “Acquired ITW Ancillary Agreements”other than Investments which constitute Cash), and ;
(iii) all of Seller's Proprietary Rights, along with all income, royalties, damages and payments due or payable as of the assetsClosing or thereafter, propertiesincluding, rightswithout limitation, claimsdamages and payments for past, privilegespresent or future infringements or misappropriations thereof, the right to ▇▇▇ and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world;
(iv) all of Seller's rights existing under leases, contracts, licenses, permits, distribution arrangements, sales and purchase agreements, accounts receivable, other agreements and business arrangements, including, without limitation, all contracts and agreements described on the Contracts Schedule attached hereto;
(v) all of Seller's rights with respect to real property leased by Seller, and interests of the Asset Selling Subsidiaries of every kind and character and wherever locatedall plants, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures buildings and other improvements situated thereon located on such leased property, and all easements, licenses, rights of way way, permits and other rightsall appurtenances to such leased property, interests including, without limitation, all appurtenant rights in and appurtenances of any Asset Selling Subsidiary therein to public streets, whether or thereunto pertainingnot vacated (collectively, the "Real Estate");
(bvi) all machinery, equipment (including all transportation and office equipment), fixtures, trade fixtures, tools, dyes and furniture owned by Seller wherever located, including, without limitation, all such items which are located in any building, warehouse, office or other space leased, owned or occupied by Seller or used in connection with the Real Property Leases to which any Asset Selling Subsidiary is a party and Estate;
(vii) all interests rental equipment of any Asset Selling Subsidiary thereinkind, including real estate fixtureswherever located, leasehold improvementsrented by Seller to any Person;
(viii) all inventories of work in process, security semi-finished and finished goods, stores, replacement and spare parts, packaging materials, operating supplies, and fuels, owned by Seller wherever located;
(ix) all office supplies, production supplies, spare parts, other deposits, common-area-maintenance refunds, adjustmentsmiscellaneous supplies, and other amounts now tangible property of any kind wherever located, including, without limitation, all property of any kind located in any building, office or hereafter payable to any Asset Selling Subsidiary under other space leased, owned or occupied by Seller or in respect any warehouse where any of such leasesSeller's properties and assets may be situated;
(cx) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepayments and prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(dxi) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all 's claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, recovery and rights of recoupment set-off of any kind;
(including any such item xii) the right to receive and retain mail, accounts receivable payments and other communications relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i)Business as now conducted;
(jxiii) all inventory (including finished products, work in process, raw materials, supplies, spare parts, the right to ▇▇▇▇ and packaging materials) in receive payment for products shipped or delivered and services performed but unbilled or unpaid as of the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing BusinessClosing;
(kxiv) all lists, records and other information pertaining to accounts, personnel and referral sources, all lists and records pertaining to suppliers and customers, and all books, ledgers, files and business records of every kind, whether evidenced in writing, electronically (including, without limitation, by computer) or otherwise;
(xv) all advertising, marketing and promotional materials and all other printed or written materials;
(xvi) all permits, licenses, certifications and approvals from all permitting, licensing, accrediting and certifying agencies, and the rights to all data and records held by such permitting, licensing and certifying agencies;
(xvii) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Businessas a going concern and all other intangible properties;
(lxviii) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
telephone numbers (me.g. "800" numbers) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australiaused by Seller; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemes.
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and Sellers shall cause Sellers to, sell, conveyassign, transfer and deliver to PurchasersPurchaser, and Purchaser Parent shall purchase, acquire and US Purchaser shalltake assignment and delivery of, the following assets owned by Sellers on the Closing Date (wherever located) related exclusively to, or used exclusively in conjunction with, the Business, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ Sellers' right, title and interest therein and thereto on the Closing Date, but not including those assets specifically excluded in Section 2.3 hereof (all of the assets to be sold, assigned, transferred and delivered to Purchaser hereunder shall be deemed included in the following, except to the extent constituting Excluded term "Acquired Assets:" as used herein):
(a) cash in an amount equal to $400.00 (or the Seller Owned Real PropertyDollar Equivalent of $400.00 for Repp Stores located in Canada) per Repp Store location (includin▇ ▇or purposes hereof each U.S. ▇▇d Canadian Repp Store and each Designated Lease location, together without duplicat▇▇▇) ("Store Cash Amount"). Sellers shall implement steps to ensure that the Store Cash Amount shall be on hand at each Repp Store location upon the commencement of business on the Cl▇▇▇▇g Date; provided, however, in the event the aggregate dollar amount of cash on hand in the Repp Store locations at the Closing Date is greater than th▇ ▇▇ore Cash Amount, then the Purchase Price shall be increased by an amount equal to the difference between the aggregate actual dollar amount of cash on hand in the Repp Store locations at the Closing Date and the Store Cash Am▇▇▇▇; provided, further, in the event the aggregate dollar amount of cash on hand in the Repp Store locations at the Closing Date is less than the Store ▇▇▇▇ Amount, then the Purchase Price shall be decreased by an amount equal to the difference between the aggregate actual dollar amount of cash on hand in the Repp Store locations at the Closing Date and the Store Cash Am▇▇▇▇ (as adjusted in accordance with all buildingsthis Section 2.1(a), structuresif appropriate, installationsthe "Store Cash Adjustment Amount"); provided, fixtures further, Sellers and other improvements situated thereon Purchaser agree that they shall each use their respective good faith best efforts to reconcile and all easements, rights determine the amount of way and other rights, interests and appurtenances cash on hand in each Repp Store location as of any Asset Selling Subsidiary therein or thereunto pertainingthe Closing Date within the time ▇▇▇iods stated in Section 3.7 hereof;
(b) all prepaid and unamortized costs for marketing expenditures and co-op advertising allowances (each an "Account" and collectively the Real Property Leases "Accounts") arising exclusively from or relating exclusively to which any Asset Selling Subsidiary the operation or conduct of the Business; provided, however, in the event the aggregate dollar amount of the Accounts at Closing is a party less than $750,000.00, then the Purchase Price shall be reduced by an amount equal to the difference between the actual aggregate dollar amount of Accounts and all interests $750,000.00; provided, further, in the event the aggregate dollar amount of any Asset Selling Subsidiary thereinAccounts at Closing is greater than $750,000.00, including real estate fixturesthen the Purchase Price shall be increased by an amount equal to the difference between the actual aggregate dollar amount of Accounts and $750,000.00 (as adjusted in accordance with this Section 2.1(b), leasehold improvementsif appropriate, security the "Accounts Amount"); provided, further, Sellers and other deposits, common-area-maintenance refunds, adjustments, Purchaser agree that they shall each use their respective good faith best efforts to reconcile the amount of Accounts and other amounts now or hereafter payable to any Asset Selling Subsidiary under or determine the Accounts Amount within the time periods stated in respect of such leasesSection 3.7 hereof;
(c) accounts receivable all supplies, materials and merchandise (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary Merchandise Inventory) or other inventories relating exclusively to the Liquid Finishing Business, including, without limitation, any such assets which (i) are actually located at any location of Sellers, or any other third party location to the extent such assets are designated for or allocated to the Business, (ii) have been paid for by Sellers prior the Closing, or (iii) have been shipped to Sellers, but not received by Sellers as of the Closing (collectively, the "Inventory");
(d) all tangible personal property (including machinery, equipment, partstools, goodsvehicles, furniture, furnishings, hardwareleasehold improvements, computersgoods, automobilesand other tangible personal property owned by Sellers which relate exclusively to the day-to-day operation or maintenance of the Business which are actually located at the Repp Catalogue Warehouse or any Store;
(e) ▇▇▇ licenses, truckspermits, tractorsapprovals, trailers certificates of occupancy, authorizations, operating permits, registrations, plans and toolsthe like applicable exclusively to the Business to the extent the same are transferable by the Sellers to the Purchaser (collectively, the "Permits");
(f) all patents, patent applications, licenses, service names, service marks, trade names, trademarks, trade name and trademark registrations (and applications therefor), copyrights and copyright registrations (and applications therefor), inventions and designs, including, without limitation, any and all of Sellers' rights in and to the names "Repp", "Repp Big & Tall", "Repp By Mail", and "Mr. Big & Tall" ▇▇▇ any Asset Selling Subsidiary o▇ ▇▇eir derivatives ▇▇ used (or is otherwis▇ subject to a right by Sellers to use, but is not currently in use) exclusively in connection with the Liquid Finishing conduct of the Business, or that appears on products related to the Business, and any and all goodwill, trade secrets, processes and know-how which relate exclusively to the Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to toll free or A800@ telephone numbers, domain rights and Internet website(s) (collectively, the Liquid Finishing Business (the “Acquired Contracts”"Intellectual Property"), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued information, files, records, data, plans, and recorded knowledge, including customer and supplier lists, related exclusively to or held by any Asset Selling Subsidiary and relating to used exclusively in connection with the Liquid Finishing BusinessBusiness (collectively, "Business Records"), except to the extent transferable;that any of the foregoing are privileged or otherwise subject to third party privacy rights (the items excluded from this Section 2.1(g) are collectively referred to herein as "Excluded Records"). The Business Records shall be delivered at Closing to Purchaser by Sellers in their then existing state and form; and
(h) any and all Books other assets and Records rights that are not of any Asset Selling Subsidiary relating the type or character referenced in Section 2.1(a) - (g) and which relate exclusively to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemes.
Appears in 1 contract
Acquired Assets. On Upon the terms and subject to the conditions of set forth in this Agreement, at the ClosingClosing but subject to the terms of the ▇▇▇▇ of Sale, Graco and Graco US Finishing Brands shall, and Seller shall cause Sellers to, sell, convey, assign, transfer and deliver to PurchasersBuyer, and Purchaser Parent Buyer shall purchase and US Purchaser shall, and shall cause Purchasers to, purchase acquire from SellersSeller, free and clear of any Liens Encumbrances (except for Permitted Liensother than contractual obligations arising following the effectiveness of the applicable Transfer Date under any Contract assumed by Buyer pursuant to the terms hereof), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ Seller’s right, title and interest in and to the following, except to the extent constituting Excluded Acquired Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the . “Acquired Contracts”), including Assets” means all of the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e)following assets, but excluding any Contract Excluded Asset: (a) all of the Seller’s rights to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if the following: (i) such non-disclosure constitutes a misrepresentation under Section 4.11 the Intellectual Property assets set forth on Annex 1.1(a); and (ii) the assumption of such Contract by Seller’s trade names, logos, service marks and trademarks and any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements variation or forms thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups name “Passport Health Plan” (the “Seller Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(aProperty”); (b) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating subject to the Liquid Finishing Businessreceipt of the Required Medicaid Regulatory Approvals and consummation of the Medicaid Novation, all of Seller’s rights and interests in the CHFS Medicaid Contract to the extent transferable;
(h) arising on or after the CHFS Medicaid Contract Transfer Date and all Books and Records of any Asset Selling Subsidiary relating rights to provide services to Medicaid Enrollees in Seller’s health plans comprising the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Medicaid Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment corresponding revenues (including any such item relating to the payment of Taxesbonuses) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned payable by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held payors with respect to such Medicaid Enrollees (and other individuals) to the Assumed Benefit Plans/Schemes.extent such revenues (including bonuses) relate to dates of service that occur on or after the CHFS Medicaid Contract Transfer Date; (c) subject to the receipt of the Required D-SNP Regulatory Approvals and consummation of the D-SNP Novation and the terms of the New Reinsurance Agreement, all of Seller’s or UHC’s rights and interests in the D-SNP Contract to the extent arising on or after the D-SNP Contract Transfer Date and all rights to provide services to D-SNP Enrollees in Seller’s or UHC’s health plans comprising the D-SNP Business and the corresponding revenues (including bonuses) payable by payors with respect to such D-SNP Enrollees (and other individuals) to the extent such revenues (including bonuses) relate to dates of service that occur on or after the D-SNP Contract Transfer Date; -2-
Appears in 1 contract
Acquired Assets. On The Parties recognize that, as of the terms and subject Effective Date, Allegheny will not be conveying any Acquired Assets to Service Provider. Allegheny may later agree to convey (or cause the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallapplicable Eligible Recipient to convey) to Service Provider, and shall Service Provider may later agree (or cause Sellers toan Affiliate to agree) to accept, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear as of any Liens the Commencement Date (except for Permitted Liensor such other date as agreed upon by the Parties in writing), all of Allegheny’s (or the following (all of the following being the “Acquired Assets”): (iapplicable Eligible Recipient’s) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the followingAcquired Assets. In consideration for any such conveyance, except Service Provider agrees to pay Allegheny on the Commencement Date the Acquired Assets Credit specified in this Agreement. In addition, Service Provider shall be responsible for, and shall pay, or provide evidence of exemption from, all sales, use, and similar federal, state and local transaction-based taxes arising out of the conveyance of the Acquired Assets, excluding, income taxes, franchise taxes, and transaction-based gross receipts taxes. The Acquired Assets Credit is exclusive of all taxes. Allegheny represents and warrants to Service Provider that Service Provider (or its Affiliates) shall take good title to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated Acquired Assets as of October 23the Commencement Date, 2008, by free and among Graco US Finishing Brands (as the assignee clear of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property liens. The conveyance of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals be effected by the delivery of such Books and Records and the applicable each Acquired Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals Service Provider where possible or, where this is not possible, by the delivery of such Books a general assignment and Records where copies ▇▇▇▇ of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain sale in substantially the originals of such Books and Recordsform set forth in Exhibit 3. Except as otherwise expressly provided in this Section 6.8, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and RecordsAllegheny CONVEYS THE ACQUIRED ASSETS TO SERVICE PROVIDER ON AN “AS IS,” “WHERE IS” AND “WITH ALL FAULTS” BASIS. ALLEGHENY HEREBY DISCLAIMS ALL WARRANTIES, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claimsEXPRESS OR IMPLIED, prepaymentsWITH RESPECT TO THE ACQUIRED ASSETS, prepaid expensesOR THE CONDITION OR SUITABILITY OF SUCH ACQUIRED ASSETS FOR USE BY SERVICE PROVIDER TO PROVIDE THE SERVICES, refundsINCLUDING WARRANTIES OF NON-INFRINGEMENT, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Appears in 1 contract
Sources: Professional Services Agreement (Allegheny Energy, Inc)
Acquired Assets. On the terms and subject to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, agree to sell, convey, transfer and deliver to PurchasersPurchaser, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, P▇▇▇▇▇▇▇▇ agrees to purchase from Sellers, free and clear of any Liens (except for Permitted Liens), all of the following (all assets of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) Sellers (collectively, the “Acquired SubsidiariesAssets”), each at the Closing and free and clear of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”)Liens. Without limiting the generality of the foregoing, the Asset Selling Subsidiaries The Acquired Assets include all of the Asset Selling Subsidiaries’ each Seller’s right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingThe tangible personal property set forth on Schedule 2.1(a);
(b) The Contracts set forth on Schedule 2.1(b)(the “Acquired Contracts”) (it being understood and agreed that between the Real Property Leases execution of this Agreement and the Closing, Purchaser has the right, in its sole discretion, to inform Sellers that it no longer desires to take assignment of one or more Contracts listed on Schedule 2.1(b), in which any Asset Selling Subsidiary is a party and all interests case such Contract(s) shall no longer be “Acquired Contracts” hereunder). If the assignment of any Asset Selling Subsidiary thereinAcquired Contract requires the consent of the other parties to such Acquired Contract (other than any Seller), including real estate fixturesthis Agreement does not constitute an agreement to assign such Acquired Contract if an attempted assignment would constitute a breach thereof, leasehold improvementsbut Sellers shall use their best efforts to obtain the written consent of the other parties to such assignment; and failing such consent, security at Purchaser’s election, Sellers shall continue to execute any such Acquired Contract upon the direction and other deposits, common-area-maintenance refunds, adjustments, for the risk and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect benefit of such leasesPurchaser;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business All Intellectual Property of the Asset Selling SubsidiariesProperty, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions;
(d) All franchises, including approvals, permits, licenses, orders, registrations, certificates (including, for the DeKups Intellectual Property owned by any Asset Selling Subsidiary avoidance of doubt, all Underwriters Laboratories certification marks and Electrical Testing Laboratories certification marks), variances, and similar rights obtained from Governmental Authorities or other Persons (collectively, the Intellectual Property owned by any Asset Selling Subsidiary as “Permits”), including, but not limited to, the Permits set forth on Schedule 2.1(d);
(e) All books, records, ledgers, files, documents, correspondence, lists, plats, architectural plans, drawings, specifications, creative materials, advertising and promotional materials, studies, reports, and other printed or written materials;
(f) All Company-branded inventory with respect to the model numbers listed on Schedule 1.2(a2.1(f) or (collectively, “Eligible Inventory”), it being understood and agreed that (i) Eligible Inventory includes but is not limited to inventory in transit from suppliers, (ii) Eligible Inventory not in transit from suppliers is limited to inventory physically located at Seller’s Owings Mills, MD and Long Beach, CA warehouse sites on the date of measure proscribed in Section 3.1(c)
(iii) Schedule 1.42.1(f) shall include the per unit cost for each model number of Eligible Inventory and (iv) in the event that Eligible Inventory consisting of UL 217 8th Edition smoke alarms and UL 217 8th Edition combination smoke/carbon monoxide alarms is lower than $2,700,000.00, Eligible Inventory may include a carbon monoxide alarm inventory of up to $500,000.00 in aggregate amount (excluding combo alarms), calculated in accordance with all other items of Eligible Inventory as set forth in Section 3.1(c). To the extent that Seller’s total carbon monoxide alarm inventory is in excess of $500,000.00, Purchaser will have the right to determine which specific carbon monoxide alarm units will be included as Eligible Inventory;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferableAll customer accounts;
(h) The names “Universal Security Instruments” and “USI Electric” and all Books derivations thereof, and Records of any Asset Selling Subsidiary relating to all other names used in connection with the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesall derivations thereof; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;and
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesAll goodwill.
Appears in 1 contract
Sources: Asset Purchase Agreement (Universal Security Instruments Inc)
Acquired Assets. On the terms and subject to the terms and conditions of this Agreement, at the Closing, Graco the Buyer shall purchase from the Seller and Graco US Finishing Brands shall, and the Seller shall cause Sellers to, sell, conveytransfer, transfer assign, convey and deliver to Purchasersthe Buyer, all right, title and Purchaser Parent interest of the Seller in and US Purchaser shallto all of the tangible and intangible assets, business, goodwill and rights of the Seller, other than the Excluded Assets (all such assets, business, goodwill and rights being purchased hereunder are collectively referred to as the “Acquired Assets”), as the same shall cause Purchasers to, purchase from Sellersexist immediately prior to the Closing, free and clear of any all Liens (except for other than Permitted Liens), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interestsincluding, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectivelywithout limitation, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Propertyall accounts, together with all buildings, structures, installations, fixtures notes and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingreceivables;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party all raw materials and supplies, work-in-process, processed or finished goods and other items of inventory, and all interests of any Asset Selling Subsidiary thereinpackaging, including wrapping, shipping containers and other parts, wherever located;
(c) all real estate property, machinery, equipment, furniture, fixtures, leasehold improvements, security vehicles and other depositstangible personal property, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited towithout limitation, all Extra-Liquid Finishing Business Intercompany Accounts Receivablesuch assets currently located at the facilities set forth on Schedule 5.10(c), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machineryIntellectual Property, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and or obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws Laws of all jurisdictions, including subject to the DeKups Intellectual Property owned by limitations set forth in Section 2.4;
(e) all of the interest and rights of the Seller in and to (i) the agreements, contracts, licenses, commitments, documents and leases (of real or personal property) (including, without limitation, any Asset Selling Subsidiary such agreements, contracts, licenses, commitments, documents and the Intellectual Property owned by any Asset Selling Subsidiary as leases listed on Schedule 1.2(a5.13) to which the Seller is a party or Schedule 1.4by which its assets are bound, save and except contracts of employment and those agreements specifically marked as Excluded Assets in the disclosure schedules to this Agreement, and (ii) all purchase and sale orders entered into by the Seller in the ordinary conduct of the Business (collectively, the “Contracts”), subject to the limitations set forth in Section 2.4;
(f) all universal product codes, stationery, forms, labels, shipping material, catalogs, brochures, art work, photographs, advertising material and promotional material;
(g) all Permits issued to or held by any Asset Selling Subsidiary payments, deposits and relating to prepaid expenses of the Liquid Finishing Business, to the extent transferableSeller;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepaymentschoses-in-action, prepaid expenseswarranties, refunds, causes of action, choses in action, rights of recovery, rights of set off, set-off and rights of recoupment of any kind (including any such item relating to the payment of Taxes other than income Taxes), but excluding any such claims, choses-in-action, warranties of refunds or rights of recovery, rights of setoff or rights of recoupment to the extent relating to Excluded Liabilities and not otherwise relating to any Acquired Assets or Assumed Liabilities;
(i) all rights and claims of any Asset Selling Subsidiary the Seller, under insurance policies providing coverage relating to the Liquid Finishing Business, except for the Acquired Assets and/or the Assumed Liabilities, but excluding any rights and/or claims to the extent covering Excluded Liabilities and not otherwise relating to any Acquired Assets described in Sections 2.2(h) and 2.2(i)or Assumed Liabilities;
(j) all inventory (Permits, including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Businessthose Permits which are listed on Schedule 5.9;
(k) all goodwill of any Asset Selling Subsidiary rights to the telephone and telecopy numbers, e-mail addresses, websites, domain names and listings used in the Business, as well as all rights to receive mail and other communications addressed to the Seller and relating to the Liquid Finishing BusinessBusiness (including mail and communications from customers, suppliers, distributors, agents and others and payments with respect to the Acquired Assets);
(l) all tangible personal property books, records, ledgers, files, documents and correspondence, lists, drawings, specifications, studies, reports, advertising and promotional materials and other printed or written materials relating to the Business (provided that the Buyer shall provide to the Seller access to copies of any Asset Selling Subsidiary listed on Schedule 2.1(lthe foregoing (and/or access to originals thereof, if reasonably necessary) upon request to the extent related to Excluded Assets or Excluded Liabilities);; and
(m) all other assets of any nature whatsoever owned, leased, licensed or used by the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect Seller relating to the Assumed Benefit Plans/SchemesBusiness or the Acquired Assets other than the Excluded Assets.
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in --------------- this Agreement, at the ClosingClosing referred to in Section 4 hereof, Graco and Graco US Finishing Brands shall, and the Sellers shall cause Sellers to, sell, conveyassign, transfer and deliver ("Transfer") to Purchasersthe Buyer, and Purchaser Parent the -------- Buyer shall purchase, acquire and US Purchaser shall, take assignment and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens)delivery of, all of the following assets (other than the Excluded Assets specified in Section 1.2) of the Sellers used in or useful to the Business (all of which assets are hereinafter referred to collectively as the following being the “"Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”"), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) including without limitation the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the --------------- following assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) All of the Seller Owned Real PropertySellers' interests in real estate owned and used in connection with the Business as of the date hereof, as described on Schedule 1.1(a) of the Disclosure Schedules, together with any and all --------------- buildings, structures, installations, fixtures plants and other structures and improvements situated thereon thereon, and, to the extent of Sellers' interest therein, any and all easementsrights and privileges pertaining thereto or to any of such buildings, rights of way and plants or other rightsstructures or improvements, interests and appurtenances of and, to the extent constituting real property owned by the Sellers, any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now fixtures attached thereto or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;located thereon (the "Owned ----- Real Property"); -------------
(c) accounts receivable (includingAny and all plants, but not limited tofixtures, all Extra-Liquid Finishing Business Intercompany Accounts Receivable)machinery, notes receivableinstallations, prepaid expensesequipment, prepayments by customersfurniture, tools, spare parts, supplies, materials and deposits held by any Asset Selling Subsidiary other personal property used in or relating to the Liquid Finishing Business;, including without limitation, those items described on Schedule 1.1(c) of the Disclosure Schedules, with such --------------- additions thereto and deletions therefrom as may hereafter arise in the ordinary course of business prior to the Closing consistent with the Sellers' obligations under Section 7 hereof (collectively, the "Equipment"); ---------
(d) all tangible All of the Sellers' title to, interest in and rights under the leases of personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and toolsdescribed on Schedule 1.1(d) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business Disclosure --------------- Schedules (the “Acquired Contracts”"Personal Property Leases"), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;; ------------------------
(f) Any and all Business Intellectual Property of the Asset Selling Subsidiariestrade accounts receivable, goodwill associated therewithnotes receivable and miscellaneous receivables of the Business (collectively, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;"Accounts Receivable"); ------------------
(g) All of the Sellers' rights under the agreements with respect to employees and independent contractors described on Schedule 1.1(g) of the --------------- Disclosure Schedules and all Permits issued to or held by of the Sellers' rights under the employee plans described on Schedule 2.1(d) of the Disclosure Schedules and any Asset Selling Subsidiary related funding --------------- media, assets, reserves, credits and relating to service agreements (collectively, the Liquid Finishing Business, to the extent transferable;"Employee Agreements"); ---------------------
(h) All of the Sellers' rights under the Contracts (as defined in Section 5.16) and under all Books contracts, commitments and Records agreements of any Asset Selling Subsidiary the Sellers used in or relating to the Liquid Finishing Business (except for entered into in the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other ordinary course of business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates prior to the Liquid Finishing Business, Closing consistent with the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesSellers' obligations under Section 7 hereof;
(i) all claimsAll of the Sellers' transferable rights under the licenses, prepaymentspermits and approvals, prepaid expensesboth governmental and private, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxesdescribed on Schedule 1.1(i) of any Asset Selling Subsidiary relating to the Liquid Finishing BusinessDisclosure Schedules (collectively, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i"Permits");; --------------- -------
(j) All of the Sellers' trademarks, service marks, trade names, trade secrets, Internet domain names, copyrights, designs, patents (and all inventory applications relating thereto, licenses (including finished products, work as licensee or licensor) used in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business and all goodwill and other agreements and applications with respect to the foregoing, production records, technical information, manufacturing know-how, processes, customer lists, telephone numbers and other intangible assets used in or relating to the Business;, including without limitation those described on Schedule 1.1(j) of the Disclosure Schedules; ---------------
(k) all goodwill All of any Asset Selling Subsidiary the Sellers' accounting books, records and ledgers used in or relating to the Liquid Finishing Business, employment and personnel records for all employees of the Business, information systems and all other documents and records relating to the Acquired Assets;
(l) all tangible personal property All of any Asset Selling Subsidiary listed the Sellers' title to and interest in motor vehicles and trailers used in conjunction with the Business, including those described on Schedule 2.1(l);1.1(l) of the Disclosure Schedules; ---------------
(m) All of the Assigned cash, commercial paper or cash equivalents of the Business including all cash in the bank accounts identified on Schedule 1.1(m) of the Disclosure Schedules (the "Business Accounts") except for --------------- ----------------- cash to the extent transferred in accordance with Section 6.2(g7.4(b) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;hereof; and
(n) any Retained Powder Finishing Business Account Receivable which is an asset All of Graco Australia; and
(o) all assets held with respect to Sellers' interests in the Assumed Benefit Plans/SchemesChippewa Valley Track LLC.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ironbridge Acquisition Corp)
Acquired Assets. On 6.8.1 Kraft agrees to convey (or shall cause the terms and subject applicable Eligible Recipient to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallconvey) to Supplier, and Supplier agrees (or shall cause Sellers toan Affiliate to agree) to accept, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear as of any Liens (except for Permitted Liens)the Commencement Date, all of Kraft’s (or the following (all of the following being the “Acquired Assets”): (iapplicable Eligible Recipient’s) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the followingAcquired Assets, except other than the Acquired Assets in the Deferred Countries. In consideration for such conveyance, Supplier agrees to pay Kraft on the Commencement Date the Acquired Assets Credit specified in this Agreement. In addition, Supplier shall be responsible for, and shall pay, or provide evidence of exemption from, all sales, use, goods and services and other similar taxes arising out of the conveyance of the Acquired Assets, excluding income taxes and franchise taxes. Kraft represents and warrants to Supplier that Supplier (or its Affiliates) shall take good title to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated Acquired Assets as of October 23the Commencement Date, 2008, by free and among Graco US Finishing Brands (as the assignee clear of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property liens. The conveyance of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals be effected by the delivery of such Books and Records and the applicable each Acquired Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals Supplier where possible or, where this is not possible, by the delivery of such Books a ▇▇▇▇ of sale in substantially the form set forth in Exhibit 2. Except as otherwise expressly provided in this Section 6.8, Kraft CONVEYS THE ACQUIRED ASSETS TO SUPPLIER ON AN AS-IS, WHERE-IS AND WITH-ALL-FAULTS BASIS. KRAFT HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACQUIRED ASSETS, OR THE CONDITION OR SUITABILITY OF SUCH ACQUIRED ASSETS FOR USE BY SUPPLIER TO PROVIDE THE SERVICES, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Kraft shall convey and Records where copies of such Books and Records are insufficient Supplier shall pay for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and in each Deferred Country, on the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets same terms described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished productsthis Section 6.8.1, work in process, raw materials, supplies, spare parts, and packaging materials) in on the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition date Supplier assumes responsibility for providing Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemesfrom such country.
Appears in 1 contract
Sources: Master Professional Services Agreement (Kraft Foods Inc)
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the ClosingClosing referred to in Section 4 hereof, Graco and Graco US Finishing Brands shall, and the Seller shall cause Sellers to, sell, conveyassign, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellersdeliver, free and clear of any Liens all Encumbrances except Permitted Encumbrances (except for Permitted Liensas defined in Section 6.8), to the Buyer, and the Buyer shall purchase, acquire and take assignment and delivery of, all of the following assets wherever situated (all of which assets are hereinafter referred to collectively as the following being the “Acquired Assets”): "ACQUIRED ASSETS"):
(ia) all All of the equity ownership interestsSeller's title to, beneficial or otherwise, interest in and rights and claims under the entities listed real property leases (the "REAL ESTATE LEASES") described on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”SCHEDULE 1.1(a), each relating to the properties therein described and the buildings and other structures or improvements thereon and, to the extent located on the property subject to the Real Estate Leases, any and all fixtures, attached thereto or located thereon (the "LEASED REAL PROPERTY");
(b) All machinery, installations, equipment, furniture, computers, spare parts, supplies, materials and other personal property located at the Leased Real Property, whether or not reflected on the books or financial statements of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts Seller, as are set forth on Schedule 2.1(iiSCHEDULE 1.1(b) hereto or as may otherwise be located at the Leased Real Property, with such additions thereto and deletions therefrom as may hereafter arise in the ordinary course of business prior to the Closing (the "EQUIPMENT");
(c) All of the Seller's title to, interest in and rights under the leases of personal property described on SCHEDULE 1.1(c) hereto (the "PERSONAL PROPERTY LEASES");
(d) The inventories, including raw materials, work in process and finished goods, directly related to the Business, whether or not reflected on the books or financial statements of the Seller, set forth on SCHEDULE 1.1(d) hereto (the "INVENTORIES");
(e) To the extent listed on SCHEDULE 1.1(e) hereto, all contract rights, manufacturer's warranties on the Acquired Assets, the unfilled sales for computer technology products made by the Seller and the unfilled purchase orders issued by Seller as of the Closing Date (the "OTHER CONTRACTS");
(f) To the extent assignable by Seller, the Seller's rights under the licenses, permits, regulatory or governmental approvals or authorizations or consents described on SCHEDULE 1.1(f) (the “Acquired ITW Ancillary Agreements”"PERMITS"), and ;
(iiig) all of the assets, properties, The Seller's rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the followingtrademarks, except trade names, service marks, corporate names, copyrights, licenses and applications with respect to the extent constituting Excluded Assets:
(a) the Seller Owned Real Propertyforegoing, together with all buildingsproduction records, structurestechnical information, installationsmanufacturing know-how, fixtures processes, trade secrets, internet domain names, e-mail addresses, goodwill, customer and supplier lists, price lists and other improvements situated thereon and all easementsintangible assets, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingonly as set forth on SCHEDULE 1.1(g) hereto (the "INTANGIBLES");
(bh) The trade accounts receivable, notes receivable, deposits, commissions, refunds and miscellaneous receivables of the Real Property Leases Seller, directly related to which any Asset Selling Subsidiary is a party the Business in each case as of the Closing Date hereof, as set forth on SCHEDULE 1.1(h) (the "ACCOUNTS RECEIVABLE"); and
(i) The books and all interests of any Asset Selling Subsidiary thereinrecords relating to the Acquired Assets, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable)business records, notes receivablefinancial, prepaid expensestax, prepayments by manufacturing and purchase records, repair and warranty records, production and inventory records, sales records, and promotional, marketing and advertising literature, documents relating to ownership, use, maintenance or repair of any of the Acquired Assets, such as specifications, inspection records and inventory records, price lists, customer and supplier lists, payroll and personnel records for the Hired Employees (as defined in Section 11.2) and correspondence with customers, manufacturers, vendors and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemessuppliers.
Appears in 1 contract
Sources: Asset Purchase Agreement (McSi Inc)
Acquired Assets. On the terms and subject Closing Date, the Seller agrees to the conditions transfer all of this Agreementits rights, at the Closing, Graco and Graco US Finishing Brands shalltitle, and shall cause Sellers to, sell, convey, transfer interest in and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), all of the following (all tangible and intangible assets of the following being Seller’s specified herein, and Buyer agrees to acquire such assets (collectively the “Acquired Assets”): (i) all ), which shall consist of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real PropertyIntellectual Property used or useful in the Acquired Business, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including including, without limitation, the DeKups software, product names, Domain Names and other Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.42.3(a);
(gb) the Contracts listed on Schedule 2.3(b) and all Permits issued to or held by any Asset Selling Subsidiary of the rights thereunder; for purposes of clarity, it is acknowledged and relating agreed that notwithstanding the Seller’s transfer to the Liquid Finishing BusinessBuyer of various Contracts requiring the provision of maintenance and support services which are reflected as “Current Liabilities” on Lines 2310 and 2320 of the Seller’s general ledger included in the Financial Statements, the Seller is retaining all rights to the extent transferablecash previously received by the Seller in connection with such maintenance and support services;
(hc) all Books and Records of any Asset Selling Subsidiary relating claims, deposits, prepayments solely as they may relate to the Liquid Finishing Business (except for undelivered consulting days of the Books and Records identified as Excluded AssetsSeller referenced in Section 2.4(c); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses chooses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing BusinessAcquired Assets, except for the Excluded Assets described in Sections 2.2(h) and 2.2(iincluding without limitation those listed on Schedule 2.3(c);
(jd) all inventory the Seller’s Accounts Receivable listed on Schedule 2.1(b), provided that if any accounts receivable outstanding on the Closing Date shall not have been collected by Buyer within ninety (including finished products90) days thereafter despite Buyer’s commercially reasonable efforts, work then Buyer may, at any time prior to the date one hundred twenty (120) days following the Closing, assign such accounts receivable back to Seller whereupon Seller shall promptly refund to Buyer the full dollar value thereof. If after such assignment Buyer shall receive any funds in processrespect of any such reassigned accounts receivable, raw materialsBuyer shall promptly remit such amounts to Seller;
(e) to the extent assignable, suppliesfranchises, spare partsapprovals, permits, licenses, orders, registrations, certificates, variances, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) similar rights obtained from governments and governmental agencies relating to the Liquid Finishing Acquired Business;
(kf) all goodwill of any Asset Selling Subsidiary sales records and documentation, correspondence, lists (including but not limited to customer lists), product specifications, creative materials, advertising and promotional materials, studies, reports, and other printed or written materials relating to the Liquid Finishing Acquired Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(og) all assets held with respect tangible personal property related to the Assumed Benefit Plans/SchemesAcquired Business as listed on Schedule 2.3(g).
Appears in 1 contract
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the ClosingClosing referred to in Section 4 hereof, Graco and Graco US Finishing Brands shall, and Seller shall cause Sellers to, sell, conveyassign, transfer and deliver to Purchasersthe Buyer (or, at Buyer’s request delivered to Seller in writing no later than 10 business days prior to the Closing, to a wholly owned Israeli subsidiary of Buyer) and Purchaser Parent the Buyer shall purchase, acquire and US Purchaser shall, take assignment and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens)delivery of, all of the following assets and rights of Seller relating to, or used in connection with, the Business (all of the following being which assets and rights are hereinafter referred to collectively as the “Acquired Assets”): ), as set forth in Exhibit A attached hereto.
(a) Seller represents and warrants to Buyer that, upon Buyer’s purchase of the Acquired Assets in accordance with this Agreement, Buyer will take the Acquired Assets free and clear of all encumbrances or rights and claims of any third party, except for: (i) all the Office of the equity ownership interestsChief Scientist of the Israeli Ministry of Trade, beneficial or otherwise, in the entities listed on Schedule 2.1(i) Industry and Labor (collectively, the “Acquired SubsidiariesOCS”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; and (ii) the rights under such Contracts Investment Center of the Israeli Ministry of Trade, Industry and Labor (the “Investment Center”), in each case as set forth on Schedule 1.2(i). The amounts paid to date and the amounts remaining outstanding as royalties by Seller to the OCS are set forth on Schedule 2.1(ii1.2(i).
(b) On the date hereof, Buyer shall execute and deliver to Seller for filing with the OCS (1) a “Transfer of Rights and Obligations Agreement” with the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever locatedOCS, in each casethe form attached as Schedule 1.2(ii) hereto, relating to, used in, or arising out pursuant to which Buyer shall fully assume the payment to the OCS of royalties under OCS programs related to the Liquid Finishing Business, except for the Excluded Acquired Assets (the “Asset Selling Subsidiaries Acquired AssetsTransfer of Rights Form”); and (2) an undertaking towards the OCS in the OCS standard form attached hereto as Schedule 1.2(iii), pursuant to which Buyer undertakes to observe and comply with provisions of Israeli law relating to the transfer of intellectual property (the “Undertaking Form”). Without limiting the generality Buyer acknowledges that execution of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and Undertaking Form is a condition to the following, except OCS’s consent to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemestransactions contemplated herein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bos Better Online Solutions LTD)
Acquired Assets. On (a) There are no properties or assets used, held for use or usable by Seller in the terms Business having an original cost as of the Interim Balance Sheet Date in excess of $10,000 which are not set forth on the Schedules hereto and, except for contemplated additions or deletions in the ordinary course of business consistent with past practice, the Acquired Assets (i) include all properties and subject assets owned by Seller or any of its Affiliates and used primarily in the Business, other than the Excluded Assets, (ii) in the aggregate, together with the Excluded Assets, are adequate to conduct the conditions operations of this Agreementthe Business in substantially the manner currently conducted, (iii) are suitable for the purposes for which they are currently used, (iv) have been maintained in accordance with Seller's historical practices since December 29, 1996, and (v) are in good condition, ordinary wear and tear excepted. Except as set forth on SCHEDULE 4.4(A) annexed hereto, (i) all Business Employees are exclusive employees of the Business and do not perform services for other businesses of Seller, (ii) the Acquired Assets are not used by other businesses of Seller and (iii) the Acquired Assets include any and all assets owned or leased by Seller that are located at the ClosingBusiness Real Property and Leased Business Real Property, Graco other than the Excluded Assets.
(b) Seller has good and Graco US Finishing Brands shall, and shall cause Sellers to, sell, convey, transfer and deliver marketable title to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellersall of the Acquired Assets, free and clear of any Lien, except for Permitted Liens. Seller is the direct sole and exclusive owner of all of the Acquired Assets other than those listed on SCHEDULE 4.4(B) annexed hereto as being leased, licensed or otherwise used by the Seller. There are no Subsidiaries of Seller which own or have any leasehold interests in any of the Acquired Assets. Except as set forth on SCHEDULE 4.4(B) annexed hereto, Seller does not use any of the Acquired Assets by the consent of any other Person and is not required to make any payments to others with respect to the Acquired Assets. To the Knowledge of Seller, Seller has the right to use all of the Acquired Assets leased, licensed or otherwise used by it. Upon the Closing, Purchaser will hold good and marketable title to all of the Acquired Assets owned by Seller, free and clear of all Liens (except for any Permitted Liens and Surviving Liens)) of any nature whatsoever, whether such Liens are now existing or perfected or at any time hereafter arise or become perfected pursuant to any Law, Contract or otherwise, and Purchaser will have the right to use all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ rightleased, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein licensed or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;otherwise used by Seller.
(c) accounts receivable (including, but The Business is not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customersas of the date hereof, and deposits held by will not be on the Closing Date, subject in any Asset Selling Subsidiary relating way to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers terms and tools) conditions of any Asset Selling Subsidiary used in either the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights SMT License Agreement or interests pursuant to that certain Settlement the Cramerton Supply Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemes.
Appears in 1 contract
Sources: Asset Purchase Agreement (JPS Automotive Products Corp)
Acquired Assets. On If a Transaction Document provides for Acquired Assets, Sears agrees to convey (or shall cause the terms and applicable Eligible Recipient to convey) to CSC (either directly or through an entity purchase transaction mutually approved by the Parties), subject to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallCSC receiving any Required Consents, and CSC agrees (or shall cause Sellers toan Affiliate to agree) to accept, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear as of any Liens (except for Permitted Liens)the applicable Commencement Date, all of Sears’ (or the following (all of the following being the “Acquired Assets”): (iapplicable Eligible Recipient’s) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the followingAcquired Assets specified in the applicable Transaction Document (or entity purchase transaction document). In consideration for such conveyance, except to CSC shall pay Sears on the extent constituting Excluded Assets:
Commencement Date the Acquired Assets Credit specified in the applicable Transaction Document (a) the Seller Owned Real Propertyor entity purchase transaction document). In addition, together with CSC shall be responsible for, and shall pay, or provide evidence of exemption from, all buildingssales, structuresuse, installationsEquipment, fixtures Software or other goods and services and other improvements situated thereon and all easements, rights similar taxes arising out of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect conveyance of such leases;
Acquired Assets. Subject to CSC receiving any Required Consents, Sears represents and warrants to CSC that CSC (cor its Affiliates) accounts receivable shall take good title to such Acquired Assets as of the Commencement Date, free and clear of all liens. Except as otherwise expressly provided in this Section 10.2 (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts ReceivableAcquired Assets), notes receivableSEARS CONVEYS ACQUIRED ASSETS TO CSC ON AN “AS IS,” “WHERE IS” AND “WITH ALL FAULTS” BASIS. SEARS HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, prepaid expensesWITH RESPECT TO ACQUIRED ASSETS, prepayments by customersOR THE CONDITION OR SUITABILITY OF SUCH ACQUIRED ASSETS FOR USE BY CSC TO PROVIDE THE SERVICES, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machineryINCLUDING WARRANTIES OF NON-INFRINGEMENT, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Appears in 1 contract
Acquired Assets. On Subject to and upon the terms and subject to the conditions of this Agreement, at the ClosingSellers shall sell, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, selltransfer, convey, transfer assign, grant and deliver (collectively "Transfer") to PurchasersBuyer, and Purchaser Parent and US Purchaser shallBuyer shall acquire, and shall cause Purchasers toexcept as otherwise indicated in this Section 1.1, purchase from Sellersat the Closing (as hereinafter defined), free and clear of any subject to the Permitted Liens (except for Permitted Liensas hereinafter defined), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the followingall business, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Propertyproperties, together with all buildingsassets, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, partsfurniture, goodsfixtures, licenses, goodwill and rights of Sellers as a going concern, of every kind, nature and description, tangible and intangible, owned or leased, real or mixed, wherever located and whether or not carried or reflected on the books or records of any Seller, including all properties, assets, franchises, rights described in the form of ▇▇▇▇ of Sale annexed as Exhibit 1.1 hereto (the "▇▇▇▇ of Sale"), and all of the Acquired Assets, as hereinafter referred to, but excluding the Excluded Assets (as hereinafter defined), as the same shall exist on the Closing Date (as hereinafter defined), forming part of or used in connection with any of the Business (as hereinafter defined). All of the foregoing (other than the Excluded Assets) are herein collectively referred to as the "Acquired Assets." The Acquired Assets also include, without limitation, all, or where expressly indicated below in this Section 1.1, all right and title and interest of any of Sellers in and to all, of the following:
1.1.1 all real property and buildings and improvements thereon and all interests therein or pertaining thereto (other than leasehold interests covered by Section 1.1.3 below) owned by any Seller and used or occupied in connection with any of the Business (as defined in Section 1.2 below) (such real property being hereinafter referred to as the "Owned Real Property"), including the real property more particularly described on Schedule 1.1.1 of the Disclosure Schedule (as hereinafter defined);
1.1.2 all tools, dies, molds, jigs, patterns, tooling, fittings, tanks, machinery, equipment, cranes, furniture, furnishings, fixtures, vehicles, rolling stock, and all computer hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in connection with any of the Liquid Finishing Business, includingall related claims, but not limited tocredits, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by recovery and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3Mset-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained off with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection all other items of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed Seller used by any Seller in connection with any of the Business (collectively the "Equipment"), including the items of Equipment more particularly described on Schedule 2.1(l)1.1.2 of the Disclosure Schedule;
1.1.3 all leasehold interests used, held or occupied in connection with any of the Business in all properties, real or mixed, wherever situated (m) but excluding the Assigned Section 6.2(g) Rights and Benefitsleased Randolph, Wisconsin real property, the Assigned Transition Services Rights and Benefits leased Highland, Illinois real property and the Assigned Transitional Trademark License Rights leased Wilmington, Delaware real property (the "Excluded Leased Property"), and Benefitsany and all leasehold improvements located in the buildings and improvements used by any Seller thereat (collectively, "Leased Real Property," and, together with the Owned Real Property and the Excluded Leased Property, the "Real Properties"), including under the leases more particularly described on Schedule 1.1.3 of the Disclosure Schedule and all leasehold improvements located thereon;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemes.
Appears in 1 contract
Acquired Assets. On the terms and subject to the terms and conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallBuyer shall purchase from each Alarm Subsidiary, and each Alarm Subsidiary shall cause Sellers to, sell, conveytransfer, transfer convey and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from SellersBuyer, free and clear of any Liens (except for Security Interest other than Permitted Liens), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ its right, title and interest in and to all of the followingassets included in or used primarily in the business of the Alarm Service Assets (other than the Excluded Assets) (collectively, except the "Acquired Assets"), including, without limitation (subject to retention by the Alarm Subsidiaries pursuant to Section 2.2) all of their right, title and interest in the assets listed on the Acquired Assets Schedule attached hereto and the following assets to the extent constituting Excluded used or included in or generated in connection with the operations of the Alarm Service Assets:
(a) the lock boxes of RSC, Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingthe Alarm Subsidiaries;
(b) prepaid costs and prepaid expenses;
(c) accounts, notes and other receivables;
(d) Inventory including raw materials and supplies, manufactured and purchased parts (including without limitation motion, smoke and heat detectors and alarm control panels whether or not held on the Real Property Leases to which any Asset Selling Subsidiary is a party Companies' premises, its customers' premises or elsewhere), work-in-process, finished goods and all interests other items of any Asset Selling Subsidiary thereininventory;
(e) machinery, including real estate equipment, furniture, fixtures, leasehold improvements, security vehicles and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in that listed on the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Assets Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contractattached hereto;
(f) all Business Intellectual Property of the Asset Selling SubsidiariesProperty, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions; the names, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary trade names, trade dress, and logos as described on the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4attached hereto;
(g) rights under agreements, contracts, purchase orders, contractual rights and other similar arrangements, including all Permits issued to or held by any Asset Selling Subsidiary and relating amendments thereto, that relate to the Liquid Finishing BusinessAlarm Service Assets that are Small Contracts, to Customer Contracts or are set forth on the extent transferableAssumed Contracts Schedule attached hereto (collectively, the "Assumed Contracts");
(h) all Books performance, surety and Records warranty bonds entered into in the Ordinary Course of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) prepayments and deposits to the extent any benefit therefrom could inure to Buyer after the Closing;
(j) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, off and rights of recoupment of any kind, except with respect to (including any such item relating i) Taxes incurred prior to the payment Closing Date, (ii) insurance with respect to Excluded Assets and (iii) holdbacks of Taxes) of any Asset Selling Subsidiary relating Republic stock with respect to acquisitions by the Companies prior to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing BusinessClosing Date;
(k) all goodwill of any Asset Selling Subsidiary relating franchises, approvals, permits, licenses, orders, registrations, certificates, variances and similar rights obtained from governments and governmental agencies, to the Liquid Finishing Businessextent transferable to Buyer;
(l) all tangible personal property rights to the telephone numbers used in the operation of any Asset Selling Subsidiary listed on Schedule 2.1(lthe Alarm Service Assets and rights to receive mail and other communications addressed to the Companies which relate to the Alarm Service Assets (including mail and communications from customers, suppliers, distributors, agents and others and payments with respect to the Acquired Assets);
(m) books, records, ledgers, files, documents, correspondence, lists, drawings, specifications, advertising and promotional materials, studies, reports and other printed or written materials relating to the Assigned Section 6.2(g) Rights and Benefits, Acquired Assets or the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and BenefitsServices;
(n) other property owned by the Alarm Subsidiaries and used primarily in the operations of the Alarm Service Assets at any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect time prior to the Assumed Benefit Plans/SchemesClosing Date.
Appears in 1 contract
Acquired Assets. On Subject to the entry of the Sale Order by the Bankruptcy Court and the exclusions set forth in Section 1.2, and in accordance with the terms and subject to the conditions of this Agreement, at the Closing, Graco Sellers agree to sell and Graco US Finishing Brands shallassign to Buyer, and shall cause Sellers toBuyer agrees to purchase, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase acquire and/or take assignment from Sellers, free and clear of any Liens (except for Permitted Liens), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling SubsidiariesSellers’ right, title and interest in and to the followingfollowing (collectively, except to the extent constituting Excluded “Acquired Assets”), including as more specifically described in Exhibits A, B, C, D and E attached hereto, free and clear of all Liens, Liabilities and encumbrances:
(a) all of Sellers’ rights under each of the Seller Owned Real Propertycontracts, together with all buildingsagreements or arrangements, structureswritten or oral (each, installationsa “Contract”) to which the MPV Companies are signatories, fixtures and other improvements situated thereon and all easementsif any, rights of way and other rightsas set forth on Exhibit A hereto (collectively, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingthe “MPV Contracts”);
(b) the Real Property Leases to which mortgages in favor of MPV, Inc., MPV Netherlands C.V., MPV Netherlands Cooperatief U.A. and MPV Netherlands B.V. and any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinrelated loans, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leaseseach as set forth on Exhibit B (the “Mortgages”);
(c) accounts receivable the Contracts to which LMS Shipmanagement, Inc., Marco Shipping Company (includingPTE) Ltd., but not limited toand Gulf South Shipping PTE Ltd are signatories, all Extraset forth on Exhibit C, hereto (collectively, the “Non-Liquid Finishing Business Intercompany Accounts ReceivableMPV Contracts”), notes receivablewhich, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Businessextent they are executory, shall be assumed by the Sellers and assigned to the Buyer and, to the extent they are not executory, shall be acquired by the Buyer;
(d) all tangible personal property the Contracts set forth on Exhibit D hereto (including machinerycollectively, equipmentthe “NWJ Contracts” and, partstogether with the Mortgages, goodsthe MPV Contracts and the Non-MPV Contracts, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller“Assigned Contracts”), 3M Company which, to the extent they are executory, shall be assumed by the Sellers and 3M Innovative Properties and that certain Supply and License Agreementassigned to the Buyer and, dated as of October 23to the extent they are not executory, 2008, shall be acquired by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative PropertiesBuyer; Exhibit E;
(e) the 3M-Related Agreements all of Sellers’ rights, title and all Contracts of any Asset Selling Subsidiary relating interest in and to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as assets set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;on
(f) to the extent transferable using commercially reasonable efforts, all Business Intellectual Property rights of Sellers under or pursuant to all warranties, representations and guarantees made by suppliers, manufacturers and contractors primarily relating to products sold, or services provided, to Sellers in respect of the Asset Selling SubsidiariesAcquired Assets other than any warranties, goodwill associated therewith, licenses representations and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights guarantees pertaining to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary Excluded Assets (as listed on Schedule 1.2(a) or Schedule 1.4defined below);
(g) all Permits issued to rights of Sellers under non-disclosure or held by any Asset Selling Subsidiary confidentiality, non-compete or non-solicitation agreements with employees and agents of Sellers or with third parties primarily relating to the Liquid Finishing Business, to Business or the extent transferableAcquired Assets (or any portion thereof);
(h) all Books and Records of Sellers’ rights to refunds of any Asset Selling Subsidiary relating to the Liquid Finishing Business Taxes (except for the Books and Records identified as Excluded Assets); provided, however, that: (1defined below) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesconstitute Assumed Liabilities;
(i) all claimsdeposits (including, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating with respect to the payment Acquired Assets, customer deposits and security deposits (whether maintained in escrow or otherwise) for rent, electricity, telephone or otherwise) and prepaid charges and expenses of Taxes) of any Asset Selling Subsidiary relating Sellers that relate exclusively to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i)Acquired Assets;
(j) except as set forth on Schedule 1.1(j), all inventory rights (including finished productsrights under insurance policies), work Claims (as defined in process, raw materials, supplies, spare parts, and packaging materialssection 101(5) in of the possession Bankruptcy Code) or causes of any Asset Selling Subsidiary (including inventory at customer locations action primarily arising from or in transit or otherwise owned by any Asset Selling Subsidiary) relating related to the Liquid Finishing BusinessAcquired Assets and facts or circumstances occurring or existing on or prior to the Closing Date, other than Claims among Sellers as described in Section 1.2(m);
(k) except as set forth on Schedule 1.1(k), all goodwill rights, recoveries, refunds and rights of any Asset Selling Subsidiary set-off and Claims and causes of action against third parties primarily arising from or to the extent relating to the Liquid Finishing BusinessAcquired Assets and facts or circumstances occurring or existing on or prior to the Closing Date;
(l) all files, documents, instruments, notices, papers, books, records, opinions and, to the extent in Sellers’ possession, contents of files (whether in paper, digital or other tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(lor intangible form) primarily relating to the Acquired Assets (the “Transferred Books and Records”);; and
(m) the Assigned Section 6.2(g) Rights all goodwill of, and Benefitsother intangible rights of Sellers in, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesAcquired Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the ClosingClosing referred to in Article IV hereof, Graco and Graco US Finishing Brands shall, and the Seller shall cause Sellers to, sell, conveyassign, transfer and deliver to Purchasersthe Buyer, and Purchaser Parent the Buyer shall purchase, acquire and US Purchaser shall, take assignment and shall cause Purchasers to, purchase from Sellersdelivery of, free and clear of any Liens (except for all Encumbrances, other than Permitted Liens)Encumbrances, all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ Seller's right, title and interest in and to all of the assets owned or leased by the Seller and relating to, or used or held for use in connection with, the conduct of the business or operations of ▇▇▇▇▇▇, with the exception of the Excluded Assets (as defined in Section 1.02 hereof) (all of which assets, other than the Excluded Assets, are hereinafter referred to collectively as the "ACQUIRED ASSETS"). The Acquired Assets shall include, but not be limited to, the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Propertythat certain parcel of land described in SCHEDULE 1.01(a) hereto, together with any and all buildings, structuresplants and other structures and improvements thereon owned by the Seller, and any and all rights and privileges of the Seller pertaining thereto or to any of such buildings, plants or other structures or improvements, and, to the extent constituting real property, any and all fixtures, machinery, installations, fixtures equipment and other improvements situated property owned by the Seller and attached thereto or located thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining(the "REAL PROPERTY");
(b) all of the Seller's title to, interest in and rights under the real estate leases (the "REAL ESTATE LEASES") described on SCHEDULE 1.01(b) hereto, relating to the properties described therein and buildings, plants and other structures and improvements thereon and, to the extent covered by the Real Estate Leases, any and all fixtures, machinery, installations, equipment and other property attached thereto or located thereon (the "LEASED REAL PROPERTY");
(c) to the extent not included in the Acquired Assets pursuant to the foregoing paragraphs (a) and (b), or covered by the Real Estate Leases or the Personal Property Leases to which (as defined below), any Asset Selling Subsidiary is a party and all plants, fixtures, machinery, equipment, installations, furniture, office equipment, communications equipment, tools, spare and replacement parts, supplies, materials, fuel and other personal property of the Seller used or held for use in connection with the conduct of the business or operations of ▇▇▇▇▇▇, and including without limitation any computers assigned to ▇▇▇▇▇▇ Employees that may not be located at the ▇▇▇▇▇▇ Facilities, and including all rights, title and interests of any Asset Selling Subsidiary thereinthe Seller in those items described on SCHEDULE 1.01(c) hereto, with such additions and deletions thereto as may arise, or may have arisen, from the date as of which such Schedule was prepared, in the ordinary course of business prior to the Closing consistent with the Seller's obligations under Article VII hereof (the "EQUIPMENT");
(d) all of the Seller's title to, interest in and rights under all of the leases of personal property used or held for use in connection with the conduct of the business or operations of ▇▇▇▇▇▇, including real estate fixtureswithout limitation the leases described on SCHEDULE 1.01(d) hereto (the "PERSONAL PROPERTY LEASES");
(e) all of the Seller's inventories held for use in the business or operations of ▇▇▇▇▇▇, leasehold improvementsincluding raw materials, work in process and finished goods (the "INVENTORIES");
(f) all of the Seller's rights under the purchase orders, contracts, arrangements, and agreements for the purchase or sale of utilities, goods, materials and services, including without limitation, distribution agreements, supply agreements, joint venture or teaming agreements, license agreements, personal property leases and development contracts, which relate to or are used or held for use in connection with the conduct of the business or operations of ▇▇▇▇▇▇, including without limitation the items described on SCHEDULE 1.01(f) hereto;
(g) all of the Seller's rights with respect to all Intellectual Property (as defined in Article XV hereof) that relates to or is used or held for use in connection with the conduct of the business or operations of ▇▇▇▇▇▇, including without limitation the Intellectual Property described on SCHEDULE 1.01(g) hereto;
(h) to the extent transferable, all of the Seller's rights with respect to any licenses, permits, concessions, orders, authorizations, approvals or registrations from, of or with any Governmental Entity (as defined in Article XV hereof) that relate to or are used or held for use in connection with the conduct of the business or operations of ▇▇▇▇▇▇, including without limitation the items described on SCHEDULE 1.01(h) hereto;
(i) all trade accounts receivable of the Seller (billed or unbilled), generated in connection with the business or operation of ▇▇▇▇▇▇ on or prior to the Closing Date;
(j) subject to Section 11.02 hereof, all records of the Seller relating to the business or operations of ▇▇▇▇▇▇, whether in hard copy or electronic format, including, without limitation, property records, production records, purchasing and sales records, personnel and payroll records, customer lists, supplier lists, credit records, accounting records and such other records relating to the business of ▇▇▇▇▇▇ as the Buyer may reasonably require to conduct the business or operations of ▇▇▇▇▇▇ subsequent to the Closing;
(k) all deferred charges, advance payments, prepaid items, security and other deposits, common-area-maintenance claims for refunds, adjustmentsrights to receive or claims for insurance proceeds, rights of offset, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect credits of such leases;
(c) accounts receivable (includingall kinds, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business▇▇▇▇▇▇;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l)Seller's rights, claims, credits, causes of action or rights of set-off against third parties relating to the Acquired Assets, including without limitation rights under manufacturers' or vendors' warranties;
(m) all goodwill associated with the Assigned Section 6.2(g) Rights Acquired Assets or ▇▇▇▇▇▇, including the exclusive right to use the name "▇▇▇▇▇▇" and Benefitsany and all trade names, trademarks and servicemarks that the Seller uses or has used in connection with operating ▇▇▇▇▇▇ (other than trade names, trademarks and servicemarks that relate solely to the Seller or any business other than ▇▇▇▇▇▇ including, without limitation, the Assigned Transition Services Rights name and Benefits ▇▇▇▇ "High Voltage Engineering Corporation", the name and ▇▇▇▇ "High Voltage Engineering", in whole or in part, and any name or ▇▇▇▇ derived from or including either of the foregoing) and the Assigned Transitional Trademark License Rights and Benefits;Intellectual Property described in paragraph (g) above; and
(n) all of the Seller's rights under any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect confidentiality agreements relating to the Assumed Benefit Plans/Schemes.operations and business of ▇▇▇▇▇▇ entered into by any ▇▇▇▇▇▇ Employees and the Seller prior to the Closing Date;
Appears in 1 contract
Sources: Asset Purchase Agreement (High Voltage Engineering Corp)
Acquired Assets. On Upon the terms and subject to the conditions of this Agreementcontained herein, Seller shall sell and transfer to Buyer, and Buyer shall purchase and acquire from Seller, at the ClosingClosing (as hereinafter defined), Graco all of the properties and Graco US Finishing Brands shall, and shall cause Sellers to, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellersassets of Seller used in the operation of the Business as of the Closing (the "Acquired Assets") other than the Excluded Assets (as hereinafter defined), free and clear of all security interests, liens, restrictions, claims, encumbrances or charges of any Liens kind (except for "Encumbrances") other than Permitted LiensEncumbrances (as hereinafter defined), all of including without limitation, the following following:
(all of the following being the “Acquired Assets”): a) All tangible personal property (isuch as machinery, equipment, inventories, furniture and motor vehicles) all of the equity ownership interestsowned by Seller;
(b) All accounts, beneficial or otherwise, notes and other receivables owned by Seller (other than those included in the entities listed on definition of Excluded Assets);
(c) Subject to the provisions of Section 1.4 of this Agreement, all rights in and with respect to the assets associated with i. the Group Dental Insurance Policy issued by Seaboard Life Insurance Company, USA to Seller (the "Dental Policy"), ii. the Group Long Term Disability Insurance Policy issued by The ▇▇▇▇ ▇▇▇▇▇▇/Provident Life Insurance Company to Seller (the "Long Term Policy"), iii. the Group Short Term Disability Insurance Policy issued by The ▇▇▇▇ ▇▇▇▇▇▇/Provident Life Insurance Company to Seller (the "Short Term Policy"), and iv. the ▇▇▇▇▇▇▇ Companies 401(k) Plan (the "401(k) Plan"), related Trust Agreement and related Services Agreement (the "Services Agreement") with Benefit Services Corporation;
(d) All claims, deposits, prepayments, refunds, causes of action, choses in action, rights of recovery, rights of set off and rights of recoupment owned by Seller (other than those included in the definition of Excluded Assets);
(e) All rights of Seller in, to and under all leases of personal property entered into by Seller in connection with the Business prior to the date hereof as set forth in Schedule 2.1(i) 1.1 hereto and any other leases which Buyer shall have agreed in writing to assume as provided in Section 1.4 of this Agreement (collectively, the “Acquired Subsidiaries”"Leases"), each ;
(f) All of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ Seller's right, title and interest in and to the followingname "▇▇▇▇▇▇▇ Communications" and related logos, except the trade names related to the extent constituting Excluded Assets:
(a) the Seller Owned Real PropertyBusiness, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way customer lists and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating trade secrets related to the Liquid Finishing Business;
(dg) all tangible personal property All rights of Seller in, to and under those contracts, commitments, purchase and sale orders, work orders, agreements and arrangements entered into by Seller in connection with the Business prior to the date hereof as described in Schedule 1.1 hereto and any other contracts which Buyer shall have agreed in writing to assume as provided in Section 1.4 of this Agreement (including machinerycollectively, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller"Contracts"), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(eh) the 3M-Related Agreements All franchises, approvals, permits, licenses, orders, registrations, certificates, variances and all Contracts of similar rights obtained from governments and governmental agencies in which Seller has any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”)right, including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if title or interest;
(i) such non-disclosure constitutes a misrepresentation under Section 4.11 All books and (ii) records of Seller related specifically to the assumption Business, including without limitation, property records, current payroll records, accounting records, supplier lists, parts lists, manuals, files, and any similar items related to the Acquired Assets or the conduct of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contractthe Business;
(fj) all Business Intellectual Property All of Seller's intellectual property, the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictionsjurisdictions (collectively, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets"Proprietary Rights"); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;and
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights Seller's cash and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemescash equivalents.
Appears in 1 contract
Sources: Asset Purchase Agreement (Multi Link Telecommunications Inc)
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and Closing referred to in Article 3 hereof the Seller shall cause Sellers to, sell, conveyassign, transfer and deliver to Purchasersthe Buyer, and Purchaser Parent the Buyer shall purchase, acquire and US Purchaser shall, take assignment and shall cause Purchasers to, purchase from Sellers, free and clear delivery of any Liens (except for Permitted Liens), all assets of the Seller that are used in the conduct of the Hardware Business, or otherwise listed on one of the Schedules described in Section 1.1, including but not limited to the following assets of the Seller (other than the Excluded Assets specified in Section 1.2) (all of the following being which assets are hereinafter referred to collectively as the “Acquired Assets”): ):
(ia) Any and all machinery, installations, equipment, furniture, tools, spare parts, supplies, materials and other personal property items described on Schedule 1.1(a) hereto, with such additions thereto and deletions therefrom as may hereafter arise in the ordinary course of business prior to the Closing (the “Equipment”);
(b) All of the equity ownership interestsSeller’s title to, beneficial or otherwise, interest in and rights under the entities listed leases of personal property described on Schedule 2.1(i1.1(b) hereto (the “Personal Property Leases”);
(c) All of the Seller’s title to, interest in and rights under the leases of real property described on Schedule 1.1(c) hereto (the “Real Property Leases”);
(d) All of the Seller’s rights under the agreements with respect to employees described on Schedule 1.1(d) hereto (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Employee Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) All of the 3M-Related Agreements Seller’s rights under the purchase orders, contracts, licenses and all Contracts agreements described on Schedule 1.1(e) hereto, for the purchase, license or sale of any Asset Selling Subsidiary relating to the Liquid Finishing Business utilities, goods, materials and services (the contracts and agreements referred to in this paragraph (e) being referred to collectively as the “Acquired Other Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property All of the Asset Selling SubsidiariesSeller’s prepaid expenses, goodwill associated therewith, licenses trade accounts receivable and sublicenses granted and obtained with respect theretomiscellaneous receivables related to the Hardware Business, and rights thereunder, remedies against infringements the proceeds thereof, as set forth on the March 31, 2003 financial statements, with such additions and rights to protection deletions thereto occurring in the ordinary course of interests therein under business through Closing (the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4“Accounts Receivable”);
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating All of the Seller’s inventories related to the Liquid Finishing Hardware Business, meaning hardware and related equipment for which the Seller has taken delivery from the manufacturer and for which the Seller’s customers have a contractual obligation to purchase (the extent transferable“Inventories”). Inventories shall not include hardware and equipment sold to a customer to whom the Seller has issued an invoice;
(h) all Books All of the Seller’s trade secrets, copyrights, designs, patents, licenses (as licensee or licensor), other agreements and Records of any Asset Selling Subsidiary relating applications with respect to the Liquid Finishing Business (except for foregoing, production records, software, technical information, manufacturing know-how, processes and other intangible assets, all as related to the Books and Records identified as Excluded Assets); providedHardware Business, however, that: (1) where any such Books and Records contain information that relates to both but excluding the Liquid Finishing Business and to any other business of Graco trade names “Technisource Hardware,” “Technisource” or any of its Affiliates and such information cannot be segregated in a manner that preserves variant thereof (the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes“Intangibles”);
(i) All of the Seller’s Hardware Business-related customer lists, credit files, accounting books, records and ledgers, employment and personnel records for all claimsHardware Employees (as defined in Section 1.5 below) and all files, prepaymentspapers, prepaid expensesbooks, refundsrecords, causes designs, specifications and all other public or confidential business records, all to the extent reasonably required for the orderly continuation of action, choses in action, rights the business operations of recovery, rights of set off, the Hardware Business and rights of recoupment (including any such item all other documents and records relating to the payment of Taxes) of any Asset Selling Subsidiary relating Acquired Assets, in original or copy form, as the parties may agree prior to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i)Closing;
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, All of Seller’s goodwill and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating business as a going concern as they relate to the Liquid Finishing Hardware Business;
(k) all goodwill , including the right to use the name Technisource Hardware, Inc., for a limited time under the license attached hereto as Exhibit A, and, as part of any Asset Selling Subsidiary relating and in order to effect the Liquid Finishing Business;transfer of such goodwill, Seller and its related companies shall enter into the Non-Solicitation Agreement attached hereto as Exhibit G; and
(l) Except as otherwise specified on the Schedules hereto, all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights Seller’s causes of action, judgments, claims and Benefitsdemands of whatever nature, the Assigned Transition Services Rights claims for refunds and Benefits rights of offset and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) credits, all assets held with respect to the Assumed Benefit Plansextent that they are assignable by the Seller, but excluding the proceeds from that certain Settlement Agreement by and between Cyberco Holdings, Inc. d/Schemesb/a Cybernet Engineering and Technisource.
Appears in 1 contract
Acquired Assets. On the terms and subject ACE agrees to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallconvey to IBM, and shall cause Sellers toIBM agrees to accept, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear as of any Liens (except for Permitted Liens)the Commencement Date, all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ ACE's right, title and interest in and to the followingAcquired Assets, except subject to certain restrictions regarding the use of the same and providing access to the extent constituting Excluded Assets:
(a) same set forth in the Seller Owned Real PropertySystems Facilities Agreement. In consideration for such conveyance, together with all buildings, structures, installations, fixtures IBM agrees to pay ACE the Acquired Assets Credit. ACE represents and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases warrants to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating IBM that IBM shall take good title to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated Acquired Assets as of October 23the Commencement Date, 2008, by free and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws clear of all jurisdictionsliens. Except as otherwise expressly provided in this Section 6.9, including ACE CONVEYS THE ACQUIRED ASSETS TO IBM ON AN "AS IS," "WHERE ----------- IS" AND "WITH ALL FAULTS" BASIS. ACE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACQUIRED ASSETS, INCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ACE agrees to pass through to IBM any warranties made by third parties regarding the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing BusinessAcquired Assets, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating ACE is permitted to do so by such third parties. To the Liquid Finishing Business (extent that IBM reconveys to ACE the Acquired Assets, IBM will do so in the same condition that IBM received such Acquired Assets except for the Books reasonable wear and Records identified as Excluded Assets); providedtear. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, howeverTO THE EXTENT THAT IBM RECONVEYS TO ACE THE ACQUIRED ASSETS, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing BusinessTHEY ARE RECONVEYED TO ACE ON AN "AS IS," "WHERE IS" AND "WITH ALL FAULTS" BASIS, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and RecordsAND IBM HEREBY DISCLAIMS ALL WARRANTIES, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and RecordsEXPRESS OR IMPLIED, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and RecordsWITH RESPECT TO SUCH RECONVEYED ACQUIRED ASSETS, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claimsINCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, prepaymentsMERCHANTABILITY, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit PlansOR FITNESS FOR A PARTICULAR PURPOSE. Ace/Schemes.IBM Proprietary Information 22
Appears in 1 contract
Sources: Information Technology Services Agreement (Ace LTD)
Acquired Assets. On (a) Subject to the terms and subject to the conditions set forth in this Agreement and on the basis of this Agreementthe representations and warranties herein, at the Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers Seller agrees to, sell, convey, transfer transfer, assign and deliver to Purchasersthe Buyer, and Purchaser Parent the Buyer agrees to purchase, receive and US Purchaser shallaccept, and shall cause Purchasers toas applicable, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), the Seller all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the followingassets and properties of every kind, except character and description, used in or for the benefit of the Business, whether tangible, intangible, real, personal or mixed, set forth in Schedule 2.1(a) hereto (collectively referred to hereinafter as the extent constituting “Assets”) other than the Excluded Assets:
Assets (aas defined below). Schedule 2.1(a) is referred to herein as the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any “Asset Selling Subsidiary therein or thereunto pertaining;Schedule.”
(b) Without limitation of the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinforegoing, including real estate fixturesthe Assets shall include, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in each case in respect of such leases;
(c) accounts receivable (including, but not limited tothe Seller, all Extra-Liquid Finishing Business Intercompany the tangible property, furniture, fixtures and equipment, Fifty Percent (50%) cash on hand at the Closing, Fifty Percent (50%) of the Accounts ReceivableReceivable (to the extent transferable under applicable Law), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating receivable (to the Liquid Finishing Business;
(d) all tangible personal property extent listed on the Asset Schedule), inventory (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Selleroffice supplies), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands tenant improvements (as to the assignee of ITW Parent and ITW US Sellerextent related to a lease which is an Assigned Contract), 3M Company goodwill, software, Intellectual Property (other than as set out as an Excluded Asset), Prepaid Items, Assigned Contracts, Assigned Personal Property Leases, books and 3M Innovative Properties;
records (e) the 3M-Related Agreements including all customer lists and all Contracts of any Asset Selling Subsidiary relating patient lists to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e)extent transferable under applicable Law, but excluding any Contract patient medical records and files to the extent required to be retained by the Seller and any communications which are subject to attorney-client privilege), any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if Seller policies and procedures relating to the Business, telephone and email addresses, all Permits and certificates of need to the extent transferable to the Buyer, all benefits, proceeds and other amounts payable under any Seller policy of insurance to the extent (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and amounts are payable for losses suffered or payable by Buyer or (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records amounts are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held payable with respect to an Assumed Liability or other liability included in the Assumed Benefit Plans/Schemescalculation of Working Capital.
Appears in 1 contract
Sources: Asset Purchase Agreement (Generex Biotechnology Corp)
Acquired Assets. On Subject to the terms and subject to the conditions of set forth in this Agreement, at the ClosingClosing referred to in Article 4 hereof, Graco and Graco US Finishing Brands shall, and the Seller shall cause Sellers to, sell, conveyassign, transfer and deliver to Purchasersthe Buyer, and Purchaser Parent the Buyer shall purchase, acquire and US Purchaser shall, take assignment and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens)delivery of, all of the following (all properties, assets and business of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries Heath Business of every kind and character description, tangible and intangible, real, personal or mixed, and wherever located, in each case, relating to, used in, or arising out case with the exception of the Liquid Finishing Business, except for the Excluded Assets (as defined in Section 1.2) (all of which assets are hereinafter referred to collectively as the “Asset Selling Subsidiaries "Acquired Assets”"). Without limiting the generality , including, without limitation:
(a) Balance Sheet (as defined in Section 3.2), as finally adjusted pursuant to Section 3.2;
(b) That portion of the foregoingBaseline Receivables (as defined in Article 13) outstanding at Closing owned by the Seller (and not by Heath Canada);
(c) All of the Seller's inventories held for use solely in the Heath Business, including raw materials, work in process and finished goods (the Asset Selling Subsidiaries Acquired Assets include "Inventories"), as reflected on the Closing Balance Sheet (as finally adjusted pursuant to Section 3.2);
(d) All of the Seller's prepaid expenses relating solely to the Heath Business, as reflected on the Closing Balance Sheet (as finally adjusted pursuant to Section 3.2);
(e) All of the Seller's rights:
(i) with respect to the real property owned by the Seller and listed on Schedule 1.1(e)(i) hereto (the "Owned Real Property") and, to the extent transferable, all of the Asset Selling Subsidiaries’ Seller's rights under any governmental permits and licenses related to the Owned Real Property;
(ii) under the real property leases listed on Schedule 1.1(e)(ii) hereto (the "Real Property Leases") relating to the real property described in the Real Property Leases (the "Leased Real Property");
(iii) under the Spring Street Lease, referred to in Section 9.7, to be entered into for the Seller's facility at 125 ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (▇▇e "Heath Headquarters");
(iv) except as provided otherwise with respect to the Heath Headquarters under the terms of the Spring Street Lease, any and all fixtures, machinery, installations, equipment (including laptops and other portable computers), furniture, tools, spare parts, supplies, materials and other personal property owned by the Seller, used in the Heath Business;
(f) All of the Seller's deferred charges relating solely to the Heath Business, as reflected on the Closing Balance Sheet (as finally adjusted pursuant to Section 3.2);
(g) All of the Seller's rights under all leases of personal property used in connection with the Heath Business;
(h) All of the Heath Business's good will and all of the Seller's rights to use the name of Heath as all or part of a trade or corporate name;
(i) All right, title and interest of Seller in and to all books and other publications, published and unpublished, relating to the Heath Business, including without limitation the list of publications attached hereto as Schedule 1.1(i) (the "Works"); all titles, manuscripts, composition, art work, and film relating to the Works; all sales support and promotional materials, advertising materials and production, sales, and marketing files relating to the Works; and all advances and other rights and interests in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i)Works;
(j) All of the Seller's rights under all inventory (including finished products, work in process, raw materials, supplies, spare parts, contracts and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) agreements relating to the Liquid Finishing Heath Business, including without limitation joint venture agreements, distribution agreements, license agreements, agreements with authors, editors, contributors, and others with respect to the Works, state and local adoption contracts relating to the Works, work-for-hire contracts and development contracts relating to the Heath Business;
(k) all goodwill All of any Asset Selling Subsidiary the Seller's rights under purchase orders outstanding on the Closing Date and relating to the Liquid Finishing Heath Business;
(l) All of the Seller's rights with respect to trademarks, trade names, titles, copyrights (registered and unregistered), subsidiary rights to all tangible personal property editions of any Asset Selling Subsidiary listed on Schedule 2.1(lthe Works and all components thereof (including but not limited to pupil books and Teacher Editions), copyrights for multimedia programs, designs, patents, colophons and licenses and applications with respect to the foregoing, in each case used in connection with the Heath Business;
(m) All of the Assigned Section 6.2(g) Rights and Benefits, Seller's rights with respect to all computer software programs used in the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;Heath Business; and
(n) any Retained Powder Finishing Business Account Receivable which is an asset Subject to Section 11.12, all records of Graco Australia; and
(o) all assets held with respect the Seller relating to the Assumed Benefit Plans/SchemesHeath Business, including, without limitation, property records, production records, purchasing and sales records, personnel and payroll records, customer lists, accounting records and such other records as the Buyer may reasonably require to conduct the Heath Business subsequent to the Closing.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Houghton Mifflin Co)
Acquired Assets. On the terms and subject to the terms and conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shallBuyer shall purchase from Seller, and Seller shall cause Sellers to, sell, conveytransfer, transfer convey and deliver to PurchasersBuyer, all of the Acquired Assets at the Closing for the consideration specified in Section 2.5. The Acquired Assets include all of the right, title, and Purchaser Parent interest that Seller possesses in and US Purchaser shallto all of the assets, properties and shall cause Purchasers torights of Seller, purchase from Sellerswhether real, personal, tangible or intangible, of every kind, nature and description used by Seller or relating to the operation of the Business, free and clear of any Indebtedness, Liens (except for and obligations whatsoever other than the Assumed Liabilities and the Permitted Liens)Exceptions, all of including, without limitation, the following (all of items, but excluding therefrom the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) Excluded Assets (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries "Acquired Assets”). Without limiting the generality "):
(a) All of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ Seller's right, title and interest in and in, to or under the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildingsany lease thereof, structures, installations, fixtures and any other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingtherein;
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases;
(c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(d) all tangible personal property (including machineryof Seller, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Businesswherever located, including, but not limited to, all toolingmachinery, moldsequipment (including, dies but not limited to, gaming devices and machines, bill validators and coin counters), Inventory, supplies, materials, ▇▇▇▇s, furniture, fixtures, computers, computer systems and software, websites, office equipment, vehicles and other equipment in which Graco US Finishing Brands has any rights or interests pursuant articles of personal property relating to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands the Business (as the assignee of ITW Parent and ITW US Seller"Tangible Property"), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(ec) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiariesgeneral intangibles, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed set forth on Schedule 1.2(a2.1(c);
(d) or the Assigned Contracts set forth on Schedule 1.42.1(d);
(e) all Accounts Receivable and all customer credits that remain outstanding as of the Closing Date;
(f) all deposits, prepayments and prepaid assets relating to the Business as of the Closing Date, other than as specifically referenced herein and subject to the prorations set forth in Section 2.10;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferableCasino Cash;
(h) all Books trademarks and Records of any Asset Selling Subsidiary trade names relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, including, but not limited to, all trade names, business names and trade dresses incorporating Mountain High Casino, including, without limitation, those trademark registrations or applications for trademark registrations set forth on Schedule 2.1(h), and all other intellectual property used in the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesBusiness;
(i) to the extent assignable by Seller to Buyer, all rights, claims, credits, suits, actions, demands, hearings, proceedings, judgments, orders, injunctions, writs, awards, decrees and rulings of any Governmental Entity relating to any Acquired Asset or any Assumed Liability, including any such items arising under guarantees, warranties, indemnities and similar rights in favor of Seller in respect of any Acquired Asset or Assumed Liability (collectively, "Seller Claims"), other than Seller Claims necessary to offset claims against Seller set forth on Schedule 2.1(i) and the Hyatt Claims;
(j) all books of account, ledgers, financial, accounting and Tax records and all general and personnel records, files, invoices, customers' and suppliers' lists, other distribution and mailing lists, price lists, reports, plans, advertising materials, catalogues, billing records, accounting information systems and software, sales and promotional literature, manuals, customer and supplier correspondence, plats, architectural plans, drawings, specifications and studies (the "Books and Records") relating to the Business, in all cases in any form or medium;
(k) all sundry items, including telephone numbers, key and lock combinations and passwords used by the Seller in the conduct of the Business;
(l) all goodwill generated by, associated with or attributable to the Business;
(m) all of Seller's rights in, to and under third-party manufacturers' warranties;
(n) the right to bill and receive payment for services performed but unbilled as of t▇▇ ▇losing;
(o) all advertising, marketing and promotional materials, creative materials and all other printed, written or electronic materials;
(p) all franchises, approvals, permits, privileges, immunities, licenses (other than Gaming Licenses and liquor licenses), orders, registrations, certificates, variances, and similar rights obtained from any Governmental Entity which are necessary to the conduct of the Business;
(q) all right, title and interest of Seller in the benefits of all insurance covering the Acquired Assets and/or the Business;
(r) all indemnities and warranties relating to the Acquired Assets; and
(s) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, set-off and rights of recoupment (or other rights and claims of a similar nature in favor of Seller including any such item relating tax refunds and insurance refunds related to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesAcquired Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (Windsor Woodmont Black Hawk Resort Corp)
Acquired Assets. On the terms and subject to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and The Acquired Assets shall cause Sellers to, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), all consist of the following (all of the following being the “Acquired Assets”): property, rights and interests:
(i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ Seller’s right, title and interest in and the Terminals, Including all Owned Real Property, and, to the followingextent any required Consents have been obtained for any Leased Real Property requiring such Consents, such Leased Real Property, and all leasehold improvements, plant tangible personal property, and equipment of Seller or other interests therein located at or identified to or otherwise belonging to the Terminals listed on Schedules 2.1(a), 3.9(a) and 3.9(b);
(ii) the Inventory of Seller, whether located at the Terminals or in transit thereto or therefrom;
(iii) the Vessels;
(iv) all Seller’s records relating exclusively to the Vessels, Including certificates (to the extent permitted by applicable Legal Requirement to be transferred), maintenance and repair, architectural plans and records, classification records and correspondence with classification society and U.S. Coast Guard, yard work, purchasing records, and vendor records, in whatever form, Including computer programs and data compilations;
(v) the Vehicles;
(vi) to the extent permitted by applicable Legal Requirement to be transferred and except to the extent constituting Excluded Assets:
(a) noted on Schedule 3.10, all Permits issued by any Governmental Body held or used by Seller in connection with the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances ownership or operation of any Asset Selling Subsidiary therein of the Acquired Assets, Including the Terminals or thereunto pertainingthe Vessels;
(bvii) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinSeller’s rights, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustmentstitle, and other amounts now or hereafter payable interest in the Assigned Contracts listed on Schedule 3.11; provided that, only with the written consent of Seller, Buyer may, prior to Closing, exclude certain Assigned Contracts after reviewing the same and amend Schedule 3.11 accordingly, and any such excluded Contracts shall thereafter not be subject to any Asset Selling Subsidiary under or in respect provision of such leasesthis Agreement for any purpose;
(cviii) accounts receivable all of Seller’s rights, title, and interest in the furniture and equipment used in connection with the Business and located on the Real Property;
(including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivableix) the books and records of Seller (or copies thereof), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary directly relating to the Liquid Finishing Business;
(d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in Acquired Assets or the Liquid Finishing Business, includingIncluding maintenance and repair records, but not limited toplans, all tooling, molds, dies drawings and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary piping diagrams relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco AustraliaTerminals; and
(ox) all assets held with respect of the Seller’s rights to proceeds from Insurance Claims for damage to any of the Acquired Assets arising prior to the Assumed Benefit Plans/SchemesClosing and not repaired by Seller on or prior to Closing to the extent agreed pursuant to Section 2.5 below.
Appears in 1 contract
Sources: Asset Purchase Agreement (Martin Midstream Partners Lp)
Acquired Assets. On (a) Except as otherwise set forth in Section 4.4(a) of the terms Disclosure Letter, the Acquired Assets include all Assets (other than the Excluded Assets) which are necessary or required to conduct the business of the Company, SWV and subject to the conditions of this AgreementSpecified Subsidiaries (including the Specified Business), at the Closing, Graco and Graco US Finishing Brands shallas presently conducted, and shall cause Sellers toin any event include substantially all of the Assets formerly owned by CycleLogic Corporation. No Software not included in the Acquired Assets is necessary for the use, sellmodification or maintenance of the Acquired Software, convey, transfer other than Shrink-Wrap Software. The Company has good and deliver valid title to Purchasersall of the Acquired Intellectual Property and all of the Acquired Software, and Purchaser Parent the Company or SWV has good and US Purchaser shallvalid title to all of the other Acquired Assets other than the Specified Subsidiary Acquired Assets, in each case free and shall cause Purchasers to, purchase from Sellersclear of any Lien except for the Permitted Encumbrances. The Specified Subsidiaries have good and valid title to all of the Specified Subsidiary Acquired Assets, free and clear of any Liens (Lien except for the Permitted Liens)Encumbrances. At the Closing, the Company will transfer to the Specified Designee at the Closing good and valid title to all of the following (Acquired Intellectual Property and all of the following being Acquired Software, and the “Acquired Assets”): (i) Company or SWV will transfer to the Specified Designee or the SWV Specified Transferee, respectively, good and valid title to all of the equity ownership interests, beneficial or otherwise, in other Acquired Assets other than the entities listed on Schedule 2.1(i) (collectively, the “Specified Subsidiary Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever locatedAssets, in each case, relating to, used in, or arising out case free and clear of the Liquid Finishing Business, all Liens except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets:
(a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining;Permitted Encumbrances.
(b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustmentsThe Acquired Assets do not include, and neither the Company nor SWV nor any of the Specified Subsidiaries owns or has ever owned, any interest in real property other amounts now or hereafter payable to any Asset Selling Subsidiary under or than as described in respect Section 4.4(b) of such leases;the Disclosure Letter.
(c) accounts receivable (including, but not limited to, Section 4.4(c) of the Disclosure Letter contains descriptions of all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to items of tangible personal property of every kind or description included in the Liquid Finishing Business;Acquired Assets having a current net book value in excess of $1,000.
(d) all All tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) assets of any Asset Selling Subsidiary used in every kind or description owned or leased by the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties;
(e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract;
(f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4;
(g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable;
(h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates Subsidiaries are in good operating condition and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Businessrepair, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books ordinary wear and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes;
(i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i);
(j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business;
(k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business;
(l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l);
(m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/Schemestear excepted.
Appears in 1 contract
Acquired Assets. On Subject to the entry of the Sale Order by the Bankruptcy Court and the exclusions set forth in Section 1.2, and in accordance with the terms and subject to the conditions of this Agreement, at the Closing, Graco Sellers agree to sell and Graco US Finishing Brands shallassign to Buyer, and shall cause Sellers toBuyer agrees to purchase, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase acquire and/or take assignment from Sellers, free and clear of any Liens (except for Permitted Liens), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling SubsidiariesSellers’ right, title and interest in and to the followingfollowing (collectively, except to the extent constituting Excluded “Acquired Assets”), including as more specifically described in Exhibits A, B, C, D and E attached hereto, free and clear of all Liens, Liabilities and encumbrances:
(a) all of Sellers’ rights under each of the Seller Owned Real Propertycontracts, together with all buildingsagreements or arrangements, structureswritten or oral (each, installationsa “Contract”) to which the MPV Companies are signatories, fixtures and other improvements situated thereon and all easementsif any, rights of way and other rightsas set forth on Exhibit A hereto (collectively, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertainingthe “MPV Contracts”);
(b) the Real Property Leases to which mortgages in favor of MPV, Inc., MPV Netherlands C.V., MPV Netherlands Cooperatief U.A. and MPV Netherlands B.V. and any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary thereinrelated loans, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leaseseach as set forth on Exhibit B (the “Mortgages”);
(c) accounts receivable the Contracts to which LMS Shipmanagement, Inc., Marco Shipping Company (includingPTE) Ltd., but not limited toand Gulf South Shipping PTE Ltd are signatories, all Extraset forth on Exhibit C, hereto (collectively, the “Non-Liquid Finishing Business Intercompany Accounts ReceivableMPV Contracts”), notes receivablewhich, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Businessextent they are executory, shall be assumed by the Sellers and assigned to the Buyer and, to the extent they are not executory, shall be acquired by the Buyer;
(d) all tangible personal property the Contracts set forth on Exhibit D hereto (including machinerycollectively, equipmentthe “NWJ Contracts” and, partstogether with the Mortgages, goodsthe MPV Contracts and the Non-MPV Contracts, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller“Assigned Contracts”), 3M Company which, to the extent they are executory, shall be assumed by the Sellers and 3M Innovative Properties and that certain Supply and License Agreementassigned to the Buyer and, dated as of October 23to the extent they are not executory, 2008, shall be acquired by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative PropertiesBuyer;
(e) the 3M-Related Agreements all of Sellers’ rights, title and all Contracts of any Asset Selling Subsidiary relating interest in and to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as assets set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired ContractExhibit E;
(f) to the extent transferable using commercially reasonable efforts, all Business Intellectual Property rights of Sellers under or pursuant to all warranties, representations and guarantees made by suppliers, manufacturers and contractors primarily relating to products sold, or services provided, to Sellers in respect of the Asset Selling SubsidiariesAcquired Assets other than any warranties, goodwill associated therewith, licenses representations and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights guarantees pertaining to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary Excluded Assets (as listed on Schedule 1.2(a) or Schedule 1.4defined below);
(g) all Permits issued to rights of Sellers under non-disclosure or held by any Asset Selling Subsidiary confidentiality, non-compete or non-solicitation agreements with employees and agents of Sellers or with third parties primarily relating to the Liquid Finishing Business, to Business or the extent transferableAcquired Assets (or any portion thereof);
(h) all Books and Records of Sellers’ rights to refunds of any Asset Selling Subsidiary relating to the Liquid Finishing Business Taxes (except for the Books and Records identified as Excluded Assets); provided, however, that: (1defined below) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposesconstitute Assumed Liabilities;
(i) all claimsdeposits (including, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating with respect to the payment Acquired Assets, customer deposits and security deposits (whether maintained in escrow or otherwise) for rent, electricity, telephone or otherwise) and prepaid charges and expenses of Taxes) of any Asset Selling Subsidiary relating Sellers that relate exclusively to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i)Acquired Assets;
(j) except as set forth on Schedule 1.1(j), all inventory rights (including finished productsrights under insurance policies), work Claims (as defined in process, raw materials, supplies, spare parts, and packaging materialssection 101(5) in of the possession Bankruptcy Code) or causes of any Asset Selling Subsidiary (including inventory at customer locations action primarily arising from or in transit or otherwise owned by any Asset Selling Subsidiary) relating related to the Liquid Finishing BusinessAcquired Assets and facts or circumstances occurring or existing on or prior to the Closing Date, other than Claims among Sellers as described in Section 1.2(m);
(k) except as set forth on Schedule 1.1(k), all goodwill rights, recoveries, refunds and rights of any Asset Selling Subsidiary set-off and Claims and causes of action against third parties primarily arising from or to the extent relating to the Liquid Finishing BusinessAcquired Assets and facts or circumstances occurring or existing on or prior to the Closing Date;
(l) all files, documents, instruments, notices, papers, books, records, opinions and, to the extent in Sellers’ possession, contents of files (whether in paper, digital or other tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(lor intangible form) primarily relating to the Acquired Assets (the “Transferred Books and Records”);; and
(m) the Assigned Section 6.2(g) Rights all goodwill of, and Benefitsother intangible rights of Sellers in, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits;
(n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and
(o) all assets held with respect to the Assumed Benefit Plans/SchemesAcquired Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (International Shipholding Corp)