Acquired Assets. Upon the terms and subject to the conditions of this Agreement, on the Closing Date, Seller shall, and shall cause the applicable Selling Subsidiaries to, Transfer to Purchaser, and Purchaser shall purchase from Seller and the applicable Selling Subsidiaries, free and clear of any Liens other than Permitted Liens, all right, title and interest of Seller and such Selling Subsidiaries in and to all of the 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 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: (a) 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, and appurtenant rights, in the Joint Venture owned by Seller; (h) all customer and supplier lists pertaining to the Crimson Business, including those set forth on Schedule 2.1(h); (i) all prepaid expenses, credits, deposits (other than customer deposits) and advance payments to the extent related to the Crimson Business, including those set forth on Schedule 2.1(i); (j) all furniture, fixtures, equipment (including office, 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 each case that are owned by a Selling Company and that are used or held for use in the Crimson Business, including, without limitation, such assets set forth on Schedule 2.1(j); (k) all trucks, tractors, trailers, railcars or other vehicles that are owned by the Selling Companies and used in the Crimson Business, including, without limitation, such assets listed on Schedule 2.1(k); (l) all catalogs, sales promotion literature and advertising materials relating to the Crimson Business; provided, however, that Seller should be entitled to retain copies of any such materials that also relate to the Excluded Assets or any businesses of Selling Companies or their Affiliates other than the Crimson Business; (m) all of the Selling Companies and their respective Affiliates’ goodwill related to the Crimson Business; (n) to the extent assignable, all rights under warranties, indemnities and all similar rights against third parties to the extent related to any of the Acquired Assets; (o) all 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 Liabilities, 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. Upon On the terms and subject to the conditions of set forth in this Agreement, on at the Closing DateClosing, Seller shallthe Sellers shall sell, assign, transfer, convey and deliver, or cause to be sold, assigned, transferred, conveyed and delivered, to the Buyer, and shall cause the applicable Selling Subsidiaries to, Transfer to Purchaser, and Purchaser Buyer shall purchase and accept from Seller and the applicable Selling Subsidiaries, free and clear of any Liens other than Permitted LiensSellers, all of the Sellers’ right, title and interest of Seller and such Selling Subsidiaries in and to all as of the Closing in all properties, assets, properties interests and rights of every kind and nature, whether real, personal or mixed, tangible or intangible (including goodwill)intangible, disclosed or undisclosed, real or personal and wherever located and whether now existing or hereafter acquired by whomever possessed, that are primarily related (or, where so specified, to the extent primarily related) to the Business and not included in the Excluded Assets free and clear of all Liens, other than Permitted Liens (the “Acquired Assets”), including (other than than, for the avoidance of doubt, those assets explicitly listed as Excluded AssetsAssets in Section 2.2):
(a) the Assigned Intellectual Property, all pursuant to and as provided in the Intellectual Property Assignment and License Agreement;
(b) other rights and technology pursuant to and as provided under the Intellectual Property Assignment and License Agreement;
(c) all inventory set forth on Schedule 2.1(c) (which schedule provides a detailed schedule of the inventory of the Business as of June 26, 2016 and shall be updated as of a recent month end prior to the Closing to provide an estimate to reflect changes to such inventory; provided that, for the avoidance of doubt, there shall be no adjustment to the Purchase Price based on such schedule and any adjustment to the Purchase Price based on inventory of the Business in connection with the Closing shall be made in accordance with the provisions of Section 2.8) (the “Inventory”);
(d) the equipment, hardware, computers, machinery, tools and tooling, furniture, fixtures, supplies, leasehold improvements, motor vehicles and other tangible personal property set forth on Schedule 2.1(d) (which schedule may be updated by Parent between the date of this Agreement and the Closing to reflect changes in the Ordinary Course of Business), which relate to, together with any third-party software products that were provided with and are integrated with or are otherwise used or held for use primarily in connection withwith the operation of such equipment, hardware or other tangible personal property;
(e) subject to Section 2.5, Section 6.2(b), all Contracts to the Crimson extent related primarily to the Business, including those that are set forth on Schedule 2.1(e), and the Federal Proposals set forth on Schedule 2.1(e) and any other Federal Proposals to the extent primarily related to the Business (collectively, the “Acquired AssetsAssumed Contracts”), but excluding any Contract (i) includingwith any Business Employee (including any such Contract relating to compensation or benefits provided to any such Business Employee) that is not listed on Schedule 2.1(e) or (ii) that is primarily related to the Business that is not listed on Schedule 2.1(e) and is a Significant Business Contract unless, without limitation(x) such Contract is listed as a Federal Proposal on Schedule 2.1(e) and becomes a Federal Contract prior to the Closing, or (y) with respect to any such Contract entered into between the date of this Agreement and the Closing Date, the following:
Buyer’s written consent (awhich consent shall not be unreasonably withheld, conditioned or delayed) all Acquired Inventory;
(b) all Acquired A/R;
(c) all Acquired Contracts;
(d) all Acquired IP;
(e) all Acquired Books and Recordsis obtained;
(f) all rights, causes of action, judgments, claims and demands of whatever nature existing as of the Closing Date under manufacturers’ and vendors’ warranties, in each case to the extent primarily related to the Acquired PermitsAssets;
(g) all of Files and Records to the equity ownership interestsextent primarily related to the Business or any Acquired Asset or Assumed Liability, but specifically excluding any Files and appurtenant rights, Records that are described in Section 2.2(d) or Section 2.2(e); provided that in the Joint Venture owned by Seller;
(h) all customer case of Files and supplier lists pertaining Records that relate primarily but not exclusively to the Crimson BusinessBusiness or any Acquired Asset or Assumed Liability, including those set forth on Schedule 2.1(h)the Seller may provide the Buyer copies thereof and retain the original materials if the Seller determines in good faith that doing so is administratively expedient;
(i) all prepaid expensessuits, creditsproceedings, deposits rights, counterclaims, requests for equitable adjustment under Federal Contracts, rights of set-off and other claims (other than customer depositsincluding under indemnification agreements in favor of either Seller) and advance payments (whether known or unknown, matured or unmatured, accrued or contingent) that either Seller may have against any Person as of the Closing Date, in each case to the extent extent: (A) primarily related to the Crimson Business; or (B) arising out of or relating to any Acquired Asset or Assumed Liability, including those set forth in each case other than under or with respect to the insurance policies of either Seller or its Affiliates; and (ii) all insurance proceeds under the insurance policies of either Seller or its Affiliates on account of the damage or complete destruction between the date of this Agreement and the Closing Date of any assets or properties that would have been included in the Acquired Assets but for such damage or destruction, in each case net of any deductible and the actual out-of-pocket cost of repair, replacement or remediation incurred by such Seller prior to the Closing and related reasonable administrative costs;
(i) all real property listed on Schedule 2.1(i) and the structures, improvements, buildings and facilities located thereon, including all rights, titles and interests appurtenant to such real property (the “Owned Real Property”);
(j) all furnitureinterests in the leased real property listed on Schedule 2.1(j) and in any structures, fixturesimprovements, equipment buildings and facilities located on such leased property (including officetogether with the leased real property of the Business Subsidiary, computer and telephone equipment), machinery, tools, dies, molds and all other tangible personal property located at any the “Leased Real Property,” and together with the Owned Real Property, at the facility of any Selling Company or any Affiliate of a Selling Company, or at any vendor, in each case that are owned by a Selling Company and that are used or held for use in the Crimson Business, including, without limitation, such assets set forth on Schedule 2.1(j“Real Property”);
(k) all trucks, tractors, trailers, railcars or other vehicles that are owned by the Selling Companies tangible assets and used property physically located in the Crimson Businessstructures, includingimprovements, without limitation, such assets listed buildings and facilities located on Schedule 2.1(k)the Real Property on the Closing Date;
(l) all catalogs, sales promotion literature and advertising materials relating trade accounts receivable to the Crimson Business; provided, however, that Seller should be entitled to retain copies of any such materials that also relate extent primarily related to the Excluded Assets Business, including those originated prior to the Closing from external sales of Business Products or any businesses of Selling Companies or their Affiliates other than pursuant to Assumed Contracts, and all rights to invoice and receive payments for Business Products shipped to customers prior to the Crimson BusinessClosing;
(m) all of prepayments and prepaid expenses, in each case to the Selling Companies and their respective Affiliates’ goodwill extent primarily related to the Crimson Business, other than for the insurance policies of either Seller or its Affiliates;
(n) to the extent assignablecapital stock (the “Business Subsidiary Stock”) of Cree Fayetteville, all rights under warranties, indemnities and all similar rights against third parties to Inc. (the extent related to any of the Acquired Assets“Business Subsidiary”);
(o) all rights any other assets reflected on the Closing Date Adjustment Amount Schedule and any assets listed on Schedule 2.1(o), which schedule may be updated by Parent between the date of this Agreement and the Closing to reflect changes in such assets in the Ordinary Course of Business;
(p) 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 Seller Authorizations (including Seller Environmental Authorizations) to the extent primarily related to the Crimson Business, the Business or any Acquired Assets Asset or the Assumed Liabilitiesoperation or use thereof, whether arising by way of counterclaim or otherwiseto the extent transferable under Law to the Buyer; and
(pq) all insurance benefits, including rights goodwill and proceeds, arising from or relating going concern value to the Crimson Businessextent primarily related to the Business or any Acquired Asset. Notwithstanding anything contained herein to the contrary, the Cree Name shall not be an Acquired Assets or the Assumed LiabilitiesAsset.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cree Inc)
Acquired Assets. Upon On the terms and subject to the conditions of set forth in this Agreement, on at the Closing DateClosing, Seller shallshall sell, assign, transfer, convey and deliver, or cause to be sold, assigned, transferred, conveyed and delivered, to Buyer, and shall cause the applicable Selling Subsidiaries to, Transfer to Purchaser, and Purchaser Buyer shall purchase and accept from Seller and the applicable Selling Subsidiaries, free and clear of any Liens other than Permitted LiensSeller, all rightof Seller’s rights, title and interest of Seller and such Selling Subsidiaries interests in and to the Business, including all of the assets, properties properties, rights, and rights claims of every kind and natureSeller relating to the Business, whether real, personal or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired (other than the Excluded Assets), which relate to, or are used or held for use in connection with, as the Crimson Business same shall exist at the Closing (collectively, the “Acquired Assets”) including). The sale and purchase of the Acquired Assets shall be free and clear of all Encumbrances (to the extent applicable as provided in the Sale Order), without limitationin each case other than Permitted Encumbrances and Assumed Liabilities. The Acquired Assets shall include, but not be limited to, all of Seller’s rights, title and interests in and to the following:assets, properties, rights and claims (except as expressly excluded under Section 1.2):
(a) all Acquired Inventory;All of those items of equipment, accessories, furniture and other tangible personal property owned by Seller set forth on Schedule 1.1(a) (which Schedule may include items that are subject to capitalized leases) (collectively, the “Personal Property”).
(b) Seller’s rights, title and interests (i) as lessee under that real property lease described on Schedule 1.1(b)(i) (the “Real Property Lease”), (ii) as lessee under those equipment, personal property and intangible property leases, rental agreements, licenses and similar Contracts described on Schedule 1.1(b)(ii) or relating to the Personal Property (the “Other Leases”), and (iii) as party to those other Contracts described on Schedule 1.1(b)(iii) including work in process thereunder (collectively the “Other Contracts”) and together with the Other Leases and the Real Property Lease, the “Assumed Contracts”), in each case to the extent assignable pursuant to Section 365 of the Bankruptcy Code. At any time at least fifteen (15) Business Days prior to the date scheduled by the Bankruptcy Court for the Sale Hearing, Buyer in its sole discretion by written notice to Seller may (i) include any additional Contract to which Seller is a party and that constitutes an “executory contract” as such term is used in Section 365 of the Bankruptcy Code ("Executory Contract") to Schedule l.l(b)(i), Schedule l.l(b)(ii) or Schedule l.l(b)(iii) and (ii) exclude any Executory Contract from Schedule l.l(b)(i), Schedule l.l(b)(ii) or Schedule l.l(b)(iii). Any Executory Contract so included pursuant to clause (i) of the preceding sentence shall be deemed an Assumed Contract hereunder for all Acquired A/R;purposes and any Executory Contract so excluded pursuant to clause (ii) of the preceding sentence shall no longer be deemed an Assumed Contract hereunder.
(c) all Acquired Contracts;[Reserved.]
(d) All accounts receivable arising out of the operation of the Business (except for receivables to the extent relating exclusively to Contracts that are not Assumed Contracts) and all Acquired IP;causes of action relating or pertaining to such accounts receivable and all notes receivable and trade accounts arising out of the Business and all causes of action relating or pertaining to such notes receivable and trade accounts (collectively, the "Receivables").
(e) all Acquired Books Any interest in and Records;to any refund of Taxes relating to the Business to the extent such Taxes are for, or applicable to, any taxable period (or portion thereof) beginning after the Closing Date.
(f) all All credits, claims for refunds, prepaid expenses, prepaid rent, deferred charges, advance payments, security or other deposits, including recoverable deposits, and prepaid items (and, in each case, security interests relating thereto) to the extent arising from or in connection with, or related to, the Acquired Permits;Assets, each as described on Schedule l.l(f).
(g) all of the equity ownership interests, and appurtenant All rights, in claims or causes of action against third parties relating to the Joint Venture owned Acquired Assets under all warranties, representations and guarantees made by Seller;suppliers, manufacturers and contractors.
(h) All books, records, files, invoices, advertising materials, cost and pricing information, supplier lists, business plans, catalogs, customer literature, quality control records and manuals, customer lists, order lists, credit records of customers (including all customer data and supplier lists other information stored on discs, tapes and other media) and like items pertaining to the Crimson BusinessBusiness (excluding Seller's accounting systems and software (to the extent not part of operational assets), including those set forth on Schedule 2.1(hcorporate books and records relating to their respective organization and existence);, provided that Seller may retain copies of
(i) all prepaid expenses, credits, deposits (other than customer deposits) books and advance payments records included in the Acquired Assets to the extent related necessary or useful for the administration of the Bankruptcy Case or any other action to which it is a party, the filing of any Tax Return, or compliance with any Applicable Laws and (ii) all personnel files.
(i) The Intangible Property owned or held by Seller relating exclusively to the Crimson Business, in each case including those without limitation (i) the registered and common law trademarks and trade names, service marks and service names, and registrations and applications for registration thereof, and foreign counterparts thereof, Internet domain names and associated content, logos, designs, slogans, trade dress and general intangibles of like nature, together with the goodwill associated therewith, as set forth on Schedule 2.1(i);
(j) all furniture, fixtures, equipment (including office, computer and telephone equipmentl.l(i)(i), machinery(ii) the patents, toolspatent applications and foreign counterparts thereof, 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 each case that are owned by a Selling Company and that are used or held for use in the Crimson Business, including, without limitation, such assets as set forth on Schedule 2.1(jl.l(i)(ii);
, (kiii) all trucksthe copyrights, tractorscopyright applications and copyright registrations and foreign counterparts thereof, trailers, railcars or other vehicles that are owned by the Selling Companies and used in the Crimson Business, including, without limitation, such assets listed as set forth on Schedule 2.1(k);
l.l(i)(iii) and (liv) all catalogs, sales promotion literature the customer list and advertising materials relating to the Crimson Business; provided, however, that Seller should be entitled to retain copies of any such materials that also relate to the Excluded Assets or any businesses of Selling Companies or their Affiliates other than the Crimson Business;
(mitems set forth on Schedule l.l(i)(iv) all of the Selling Companies and their respective Affiliates’ goodwill related to the Crimson Business;
(n) to the extent assignable, all rights under warranties, indemnities and all the inventions, discoveries, trade secrets, know-how and similar proprietary rights against third parties to the extent and related to any of the Acquired Assets;
licenses and other agreements set forth (o) all 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 Businesscollectively, the Acquired Assets or the Assumed Liabilities, 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"Intangible Property").
Appears in 1 contract
Sources: Purchase Agreement
Acquired Assets. Upon On the terms and subject to the conditions of set forth in this Agreement, on at the Closing Datethe Seller shall sell, Seller shallassign, transfer, convey, and shall cause deliver to the applicable Selling Subsidiaries toPurchaser free and (where applicable) clear of all liens, Transfer to Purchaserclaims, interests and encumbrances of any nature, and the Purchaser shall purchase and accept from the Seller the assets of the Seller (the "Seller Assets") as hereinafter described (collectively, the assets set forth in this Section 2.1 are referred to as "Seller's Assets"). Any liens or encumbrances assumed by Purchaser are identified in Schedule 2.2:
(a) all legal and the applicable Selling Subsidiaries, free and clear of any Liens other than Permitted Liens, all beneficial right, title title, and interest of Seller and such Selling Subsidiaries the Seller, whether prospective or actual, in and to all of the assets, properties and rights of every kind and natureSeller Assets, whether tangible or intangible, real, personal or mixed, tangible wherever situated, owned, held or intangible (including goodwill)used by the Seller or in which the Seller has any right, wherever located and whether now existing title or hereafter acquired (other than the Excluded Assets)interest that is owned, which relate todirectly or indirectly, leased or are used or otherwise held primarily for use in connection with, the Crimson Business and specifically including the following:
(collectively, i) all accounts receivable arising out of the “Acquired Assets”) operation of the Business existing on the date hereof including, without limitation, those listed or described on Schedule 2.1(b)(i), or arising in the followingordinary course under the Customer Contracts after the date hereof (the "Accounts Receivable");
(ii) all rights and incidents of interest of the Seller and any Seller Subsidiary to:
(a) 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, services agreements between the Seller and appurtenant rights, a customer in any way relating to the Business (the "Customer Contracts") existing on the date hereof or arising in the Joint Venture owned ordinary course after the date hereof and listed or described on Schedule 2.1(b)(ii)(A) (which Schedule will be provided by Seller;
(h) all customer and supplier lists pertaining Purchaser prior to the Crimson Business, including those set forth on Schedule 2.1(hClosing Date);
(iB) all prepaid expensesthe agreements, credits, deposits (contracts and arrangements between the Seller and a vendor or other than customer deposits) and advance payments third party providing goods or services relating to the extent related Business listed on Schedule 2.1(b)(ii)(B) (which Schedule will be provided by the Purchaser prior to the Crimson Business, including those set forth on Schedule 2.1(iClosing Date);
(jC) all furnitureof the rights of the Seller regarding confidentiality and/or non-competition with respect to the Transferred Employees and former employees; and
(iv) all trade names, fixturestrademarks, equipment (including officeregistered copyrights, computer service marks, trademark registrations and telephone equipment)applications, machineryservice mark registrations and applications, toolscopyright registrations an▇ ▇pplications, dies, molds internet addresses 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 each case that are owned by a Selling Company and that are internet related assets used or held for use primarily in the Crimson Business, including, without limitation, such assets set forth operation of the Business as are listed or described on Schedule 2.1(j2.1(b)(iv) (the "Intellectual Property");
(k) all trucks, tractors, trailers, railcars or other vehicles that are owned by the Selling Companies and used in the Crimson Business, including, without limitation, such assets listed on Schedule 2.1(k);
(l) all catalogs, sales promotion literature and advertising materials relating to the Crimson Business; provided, however, that Seller should be entitled to retain copies of any such materials that also relate to the Excluded Assets or any businesses of Selling Companies or their Affiliates other than the Crimson Business;
(m) all of the Selling Companies and their respective Affiliates’ goodwill related to the Crimson Business;
(n) to the extent assignable, all rights under warranties, indemnities and all similar rights against third parties to the extent related to any of the Acquired Assets;
(ov) all rights to any claimsand claims under all contracts, suitswarranties, actions proceedings or investigations at law or representations and guarantees made by suppliers, manufacturers and contractors in equity of any nature available to or being pursued by such Selling Company or its Affiliates to connection with the extent related to the Crimson Business, the Acquired Seller's Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise; and
(p) and all insurance benefits, including rights and proceeds, arising from or claims relating to the Crimson Business, the Acquired Assets Assumed Liabilities except those shown or the Assumed Liabilities.described on Schedule 2.1(b)(v);
Appears in 1 contract
Acquired Assets. Upon On the terms and subject to the conditions of set forth in this Agreement, on at the Closing Datethe Seller shall sell, Seller shallassign, transfer, convey, and shall cause deliver to the applicable Selling Subsidiaries toPurchaser free and (where applicable) clear of all liens, Transfer to Purchaserclaims, interests and encumbrances of any nature, and the Purchaser shall purchase and accept from the Seller the assets of the Seller (the "Seller Assets") as hereinafter described (collectively, the assets set forth in this Section 2.1 are referred to as "Seller's Assets"). Any liens or encumbrances assumed by Purchaser are identified in Schedule 2.2:
(a) all legal and the applicable Selling Subsidiaries, free and clear of any Liens other than Permitted Liens, all beneficial right, title title, and interest of Seller and such Selling Subsidiaries the Seller, whether prospective or actual, in and to all of the assets, properties and rights of every kind and natureSeller Assets, whether tangible or intangible, real, personal or mixed, tangible wherever situated, owned, held or intangible (including goodwill)used by the Seller or in which the Seller has any right, wherever located and whether now existing title or hereafter acquired (other than the Excluded Assets)interest that is owned, which relate todirectly or indirectly, leased or are used or otherwise held primarily for use in connection with, the Crimson Business and specifically including the following:
(collectively, i) all accounts receivable arising out of the “Acquired Assets”) operation of the Business existing on the date hereof including, without limitation, those listed or described on Schedule 2.1(a)(i), or arising in the followingordinary course under the Customer Contracts after the date hereof (the "Accounts Receivable");
(ii) all rights and incidents of interest of the Seller to:
(a) 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, services agreements between the Seller and appurtenant rights, a customer in any way relating to the Business (the "Customer Contracts") existing on the date hereof or arising in the Joint Venture owned ordinary course after the date hereof and listed or described on Schedule 2.1(a)(ii)(A) (which Schedule will be provided by Seller;
(h) all customer and supplier lists pertaining Purchaser prior to the Crimson Business, including those set forth on Schedule 2.1(hClosing Date);
(iB) all prepaid expensesthe agreements, credits, deposits (contracts and arrangements between the Seller and a vendor or other than customer deposits) and advance payments third party providing goods or services relating to the extent related Business listed on Schedule 2.1(a)(ii)(B) (which Schedule will be provided by the Purchaser prior to the Crimson Business, including those set forth on Schedule 2.1(iClosing Date);
(jC) all of the rights of the Seller regarding confidentiality and/or non-competition with respect to its current and former employees; and
(iii) all equipment, computers, furniture, furnishings, fixtures, equipment (including officeoffice supplies, computer and telephone equipment), machinery, tools, dies, molds vehicles 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 Companycurrently owned by, or at any vendoron order to be delivered to, in each case that are owned by a Selling Company and the Seller, that are used or held for use in the Crimson Businessoperation of the Business or are located on, includingor to be delivered to, any owned real property or premises subject to the real property leases (collectively, the "Tangible Personal Property"), including without limitation, such assets set forth of the foregoing as are listed or described on Schedule 2.1(j2.1(a)(iii);
(kiv) all truckstrade names, tractorstrademarks, trailersregistered copyrights, railcars or service marks, trademark registrations and applications, service ▇▇▇▇ registrations and applications, copyright registrations and applications, internet addresses and other vehicles that are owned by the Selling Companies and internet related assets used primarily in the Crimson operation of the Business as are listed or described on Schedule 2.1(a)(iv) (the "Intellectual Property");
(v) all rights and claims under all contracts, warranties, representations and guarantees made by suppliers, manufacturers and contractors in connection with the Seller's Assets and all rights and claims relating to Assumed Liabilities except those shown or described on Schedule 2.1(a)(v);
(vi) all licenses, permits, authorizations and approvals issued to the Seller by any Governmental Entity relating to the operation of the Business, including, including without limitation, such assets of the foregoing as are listed or described on Schedule 2.1(k2.1(a)(vii);
(lvii) all catalogssurety bonds, sales promotion literature and advertising materials relating to collateral bonds, letters of credit, cash trusts, cash deposits or the Crimson Business; providedproceeds thereof for the Financial Assurance requirements or performance bond requirements, however, that Seller should be entitled to retain copies of any such materials that also relate to the Excluded Assets whether or any businesses of Selling Companies or their Affiliates other than the Crimson Businessnot required under applicable Environmental Laws;
(mviii) all books and records of the Selling Companies and their respective Affiliates’ goodwill related to the Crimson Business;
(n) to the extent assignable, all rights under warranties, indemnities and all similar rights against third parties to the extent related to any of the Acquired Assets;
(o) all 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 Liabilities, 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. Upon 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, on 363, 365 and 1141 of the Bankruptcy Code, at the Closing Datethe Seller shall sell, Seller shallassign, transfer, convey, and shall deliver, and cause the applicable Selling Subsidiaries toSubs to sell, Transfer assign, transfer, convey and deliver to Purchaser, and the Purchaser shall purchase from Seller and the applicable Selling SubsidiariesPurchasing Subs, free and clear of all liens, claims, interests and encumbrances of any Liens other than 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), Section 1.1(b) and Section 1.1(c) are referred to as "Acquired Assets"):
(a) all of the outstanding equity interests (the "Interests") of the subsidiaries of the Seller set forth on Schedule 1.1
(a) (each a "Transferred Sub" and collectively the "Transferred Subs").
(b) all legal and beneficial right, title title, and interest of the Seller and such of each Selling Subsidiaries Sub in and to any and all of the assets, properties and rights assets of every kind and naturedescription, whether tangible or intangible, real, personal or mixed, tangible wherever situated, owned, held or intangible used by the Seller (including goodwill)or any Selling Sub) or in which the Seller (or any Selling Sub) has any right, wherever located and whether now existing title or hereafter acquired (other than the Excluded Assets)interest that is owned, which relate todirectly or indirectly, leased or are used or otherwise held primarily for use in connection withthe Business, except for the Crimson 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 (collectively, existing on the “Acquired Assets”) date hereof including, without limitation, those listed or described on Schedule 1.1(b)(i), or arising in the followingordinary course under the Customer Contracts after the date hereof (the "Accounts Receivable");
(ii) all rights and incidents of interest of the Seller and of each Selling Sub to:
(a) 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, waste management services agreements between the Seller (or one of the Selling Subs) and appurtenant rights, a customer primarily relating to the Business (the "Customer Contracts") existing on the date hereof or arising in the Joint Venture owned ordinary course after the date hereof and listed or described on Schedule 1.1 (b)(ii)(A) (which Schedule will be provided by Seller;
(h) all customer and supplier lists pertaining Purchaser prior to the Crimson Business, including those set forth on Schedule 2.1(hDue Diligence Expiration Date);
(iB) all prepaid expensesthe agreements, credits, deposits contracts and arrangements between the Seller (other than customer depositsor one of the Selling Subs) and advance payments a vendor or other third party providing goods or services primarily relating to the extent related Business listed on Schedule 1.1(b)(ii)(B) (which Schedule will be provided by the Purchaser prior to the Crimson Business, including those set forth on Schedule 2.1(iDue Diligence Expiration Date);
(jC) to the extent transferable and exclusive of those which pertain to the Excluded 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
(D) 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 Purchaser prior to the Due Diligence Expiration Date);
(iii) all equipment, computers, furniture, furnishings, fixtures, equipment (including officeoffice supplies, computer and telephone equipment), machinery, tools, dies, molds vehicles and all other tangible personal property located at any Leased Real Propertycurrently owned by, at or on order to be delivered to, the facility of any Selling Company Seller or any Affiliate of a Selling CompanySub, or at any vendor, in each case that are owned by a Selling Company and that are used or held for use primarily in the Crimson Businessoperation of the Business or are located on, includingor to be delivered to, any Owned Real Property or premises subject to the Real Property Leases (collectively, the "Tangible Personal Property"), including without limitation, such assets set forth of the foregoing as are listed or described on Schedule 2.1(j1.1(b)(iii);
(kiv) to the extent transferable, all 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 mark registrations and applications, copyright re▇▇▇▇rations and applications, internet addresses and other internet related assets used primarily in the operation of the Business, including without limitation such of the foregoing as are listed or described on Schedule 1.1(b)(iv) (the "Intellectual Property"), provided that the Purchaser (or one of the Purchasing Subs) shall, to the extent it 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;
(v) all trucksrights and claims under all warranties, tractorsrepresentations and guarantees made by suppliers, trailers, railcars manufacturers and contractors in connection with the Acquired Assets and all rights and claims relating to Assumed Liabilities except those shown or other vehicles described on Schedule 1.1(b)(v);
(A) the real property used primarily in the operation of 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 owned 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 Companies and used in Sub by any Governmental Entity primarily relating to the Crimson operation of the Business, including, including without limitation, such assets of the foregoing as are listed or described on Schedule 2.1(k1.1(b)(vii);
(lviii) all catalogs, sales promotion literature the bank accounts and advertising materials lockbox arrangements primarily relating to the Crimson Business; provided, however, Business that Seller should be entitled to retain copies are listed or described on Schedule 1.1(b)(viii) (excluding all rights or incidents of any such materials that also relate interest with respect to the Excluded Assets cash or any businesses 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 Companies or their Affiliates other than Subs primarily relating to the Crimson operation of the Business;
(mxi) all of 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 Companies and their respective Affiliates’ goodwill related Subs relating to the Crimson operation of the Business;
(nxiii) all goodwill primarily related to the Business; and
(xiv) to the extent assignable, rights of indemnification from all rights under warranties, indemnities and all similar rights against non-affiliated third parties for liabilities and obligations relating to the extent related to any of Business or the Acquired Assets;.
(oc) all rights to any claimsthe company seal, suitsminute books, actions proceedings charter documents, stock or investigations at law or in equity of any nature available to or being pursued by record books and such Selling Company or its Affiliates other books and records as pertain to the extent related 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 Crimson Businesscontrary, if, at or prior to the Closing, the Acquired Assets or Seller shall have obtained a Confirma tion Order authorizing the Assumed Liabilities, whether arising by way of counterclaim or otherwise; and
(p) all insurance benefits, including rights and proceeds, arising from or relating issuance to the Crimson Business, Purchaser of 100% of the Acquired Assets or reorganized equity interests of the Assumed Liabilities.Domestic Transferred Subs listed on Schedule 1.1
Appears in 1 contract
Acquired Assets. Upon 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, on the Closing Date, Seller shall, and shall cause the applicable Selling Subsidiaries to, Transfer to Purchaser, and Purchaser shall purchase from Seller and the applicable Selling Subsidiaries, free and clear of any Liens other than Permitted LiensLien (except for the Assumed Liabilities), all of the right, title and interest of the Seller and such Selling Subsidiaries in and to all of the assetsassets and properties of the Seller used exclusively in the Business and located at the Seller’s location in Haverhill, properties and rights of every kind and natureMassachusetts, whether realincluding, personal or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired (other than the Excluded Assets), which relate to, or are used or held for use in connection withwithout limitation, the Crimson Business following assets and properties (collectively, the “Acquired Assets”) including, without limitation, but excluding the followingExcluded Assets:
(a) All Products, machinery, equipment, tooling, and other fixed tangible assets of the Seller listed on Schedule 2.1(a) (collectively, the “Tangible Assets”), including all Acquired Inventorysuch assets on the Premises on the date of the Closing;
(b) all Acquired A/RAll raw material, work in process, and finished product inventory of the Seller listed on Schedule 2.1(b) (collectively, the “Inventory”);
(c) all Acquired Contracts;All Business Intellectual Property,
(d) all Acquired IPAll rights of the Seller and its Affiliates under the real property lease identified on Schedule 2.1(d) (the “Real Property Lease”);
(e) All rights of the Seller under all Acquired Books purchase orders, order backlog, supply, manufacturing, OEM, sourcing and Recordsdistribution agreements with suppliers and customers listed on Schedule 2.1(e), including all rights to the revenue therefrom paid by the customer after the Closing (subject to 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 2.1(e) (collectively, the “Operating Agreements”) (except to the extent any such rights are designated as Excluded Assets);
(f) All rights of the Seller under all Acquired Permitsagreements with independent sales representatives listed on Schedule 2.1(f) (collectively, “Sales Representative Agreements”);
(g) all All rights of the equity ownership interests, Seller relating to the FCC and appurtenant rights, in Industry Canada certifications relating to the Joint Venture owned by SellerGigaLink radios as listed on Schedule 2.1(g);
(h) all customer and supplier lists pertaining All prepaid expenses of the Seller relating exclusively to the Crimson Business, including those Business set forth on Schedule 2.1(h);
(i) All customer lists, files and records that are located at the Seller’s premises in Haverhill, Massachusetts; provided, however, that the Seller shall be entitled to retain copies of all prepaid expensessuch materials and that the Buyer shall make all such materials available for inspection and copying by the Seller or its Affiliates after the Closing, credits, deposits (other than customer deposits) and advance payments to the extent related to the Crimson Business, including those as more fully set forth on Schedule 2.1(iin Section 6.3(b);
(j) all furnitureThe telephone, fixturesfacsimile and other communication lines and numbers, equipment (including officeand the Internet domain names, 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 each case that are owned by a Selling Company and that are used or held for use in the Crimson Business, including, without limitation, such assets set forth as listed on Schedule 2.1(j);; and
(k) all trucks, tractors, trailers, railcars or other vehicles that are owned by All of the Selling Companies Seller’s books and used in the Crimson Business, including, without limitation, such assets listed on Schedule 2.1(k);
(l) all catalogs, sales promotion literature and advertising materials relating records related exclusively to the Crimson BusinessAcquired Assets; provided, however, that the Seller should shall be entitled to retain copies of any all such materials and that also relate to the Excluded Assets or any businesses of Selling Companies or their Affiliates other than Buyer shall make all such books and records available for inspection and copying by the Crimson Business;
(m) all of the Selling Companies Seller and their respective Affiliates’ goodwill related to the Crimson Business;
(n) to the extent assignable, all rights under warranties, indemnities and all similar rights against third parties to the extent related to any of the Acquired Assets;
(o) all 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 after the extent related to the Crimson BusinessClosing, the Acquired Assets or the Assumed Liabilities, 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 Liabilitiesas more fully set forth in Section 6.3(b).
Appears in 1 contract
Acquired Assets. Upon the terms and subject to the conditions of set forth in this Agreement, on the Closing DateSeller agrees to sell, Seller shalltransfer, assign, convey and shall cause the applicable Selling Subsidiaries to, Transfer deliver to Purchaser, and Purchaser shall purchase agrees to purchase, acquire and accept from Seller and Seller, at the applicable Selling Subsidiaries, free and clear of any Liens other than Permitted LiensClosing (as defined in Section 3.1), all of Seller's right, title and interest of Seller and such Selling Subsidiaries in and to all of the assets, properties rights and rights of every kind and nature, whether real, personal property used exclusively or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired (other than the Excluded Assets), which relate to, or are used primarily in or held for use by Seller exclusively or primarily in connection with, the Crimson operation of the PRENATE Business (collectively, the “Acquired Assets”) including, without limitation, the following:
(a) all Acquired Seller's inventory, including the Sample 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", which term shall not include Sample Inventory);
(b) all Acquired A/RSeller's inventory in existence at the Closing Date of promotional materials, including Sample Inventory and medical education materials associated with the PRENATE Business;
(c) all Acquired Contractscustomer lists of the PRENATE Business;
(d) all Acquired IPintellectual 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 those set forth on Schedule 1.1(e) annexed hereto, (ii) all trade secrets, inventions, know-how, processes, product specifications, designs, copyrights and formulae, whether patentable or unpatentable, and (iii) all Trademark applications;
(eA) all Acquired Books right, title and Records;
(f) interest in and under all Acquired Permits;
(g) all contracts, agreements, open sales orders, enforceable arrangements and other commitments of the equity ownership interests, and appurtenant rights, in the Joint Venture owned by Seller;
(h) all customer and supplier lists pertaining Seller related to the Crimson PRENATE Business, including those set forth on Schedule 2.1(h);
1.1(e)-1 annexed hereto and (iB) all prepaid expenses, credits, deposits (other than customer deposits) and advance payments to the extent rights related to the Crimson BusinessPRENATE Business in and under the Multiproduct Contracts, including those set forth on Schedule 2.1(i);
(j1.1(e)-2 annexed hereto. All contracts referred to under A and B of this Section 1.1(e) all furniture, fixtures, equipment (including office, computer and telephone equipment), machinery, tools, dies, molds and all other tangible personal property located at any Leased Real Property, at shall hereinafter be collectively referred to as the facility of any Selling Company "Assigned Contracts". "Multiproduct Contracts" shall mean those Assigned Contracts containing rights or any Affiliate of a Selling Company, or at any vendor, in each case that are owned by a Selling Company and that are used or held for use in the Crimson Business, including, without limitation, such assets set forth on Schedule 2.1(j);
(k) all trucks, tractors, trailers, railcars or other vehicles that are owned by the Selling Companies and used in the Crimson Business, including, without limitation, such assets listed on Schedule 2.1(k);
(l) all catalogs, sales promotion literature and advertising materials obligations relating to both (i) products which form a part of the Crimson Business; provided, however, that Seller should be entitled to retain copies of any such materials that also relate to PRENATE Business and (ii) products which are not associated with the Excluded Assets or any businesses of Selling Companies or their Affiliates other than the Crimson PRENATE Business;
(m) all of the Selling Companies and their respective Affiliates’ goodwill related to the Crimson Business;
(n) to the extent assignable, all rights under warranties, indemnities and all similar rights against third parties to the extent related to any of the Acquired Assets;
(o) all 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 Liabilities, 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
Sources: Asset Purchase Agreement (First Horizon Pharmaceutical Corp)
Acquired Assets. Upon On the terms and subject to the conditions of set forth in this Agreement, on at the Closing Datethe Seller shall sell, Seller shallassign, transfer, convey, and shall cause deliver to the applicable Selling Subsidiaries toPurchaser free and (where applicable) clear of all liens, Transfer to Purchaserclaims, interests and encumbrances of any nature, and the Purchaser shall purchase and accept from the Seller the assets of the Seller (the "Seller Assets") as hereinafter described (collectively, the assets set forth in this Section 2.1 are referred to as "Seller's Assets"). Any liens or encumbrances assumed by Purchaser are identified in Schedule 2.2:
(a) all legal and the applicable Selling Subsidiaries, free and clear of any Liens other than Permitted Liens, all beneficial right, title title, and interest of Seller and such Selling Subsidiaries the Seller, whether prospective or actual, in and to all of the assets, properties and rights of every kind and natureSeller Assets, whether tangible or intangible, real, personal or mixed, tangible wherever situated, owned, held or intangible (including goodwill)used by the Seller or in which the Seller has any right, wherever located and whether now existing title or hereafter acquired (other than the Excluded Assets)interest that is owned, which relate todirectly or indirectly, leased or are used or otherwise held primarily for use in connection with, the Crimson Business and specifically including the following:
(collectively, i) all accounts receivable arising out of the “Acquired Assets”) operation of the Business existing on the date hereof including, without limitation, those listed or described on Schedule 2.1(a)(i), or arising in the followingordinary course under the Customer Contracts after the date hereof (the "Accounts Receivable");
(ii) all rights and incidents of interest of the Seller to:
(a) 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, services agreements between the Seller and appurtenant rights, a customer in any way relating to the Business (the "Customer Contracts") existing on the date hereof or arising in the Joint Venture owned ordinary course after the date hereof and listed or described on Schedule 2.1(a)(ii)(A) (which Schedule will be provided by Seller;
(h) all customer and supplier lists pertaining Purchaser prior to the Crimson Business, including those set forth on Schedule 2.1(hClosing Date);
(iB) all prepaid expensesthe agreements, credits, deposits (contracts and arrangements between the Seller and a vendor or other than customer deposits) and advance payments third party providing goods or services relating to the extent related Business listed on Schedule 2.1(a)(ii)(B) (which Schedule will be provided by the Purchaser prior to the Crimson Business, including those set forth on Schedule 2.1(iClosing Date);
(jC) all of the rights of the Seller regarding confidentiality and/or non-competition with respect to its current and former employees; and
(iii) all equipment, computers, furniture, furnishings, fixtures, equipment (including officeoffice supplies, computer and telephone equipment), machinery, tools, dies, molds vehicles 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 Companycurrently owned by, or at any vendoron order to be delivered to, in each case that are owned by a Selling Company and the Seller, that are used or held for use in the Crimson Businessoperation of the Business or are located on, includingor to be delivered to, any owned real property or premises subject to the real property leases (collectively, the "Tangible Personal Property"), including without limitation, such assets set forth of the foregoing as are listed or described on Schedule 2.1(j2.1(a)(iii);
(kiv) all truckstrade names, tractorstrademarks, trailersregistered copyrights, railcars or service marks, trademark registrations and applications, service m▇▇▇ registrations and applications, copyright registrations and applications, internet addresses and other vehicles that are owned by the Selling Companies and internet related assets used primarily in the Crimson operation of the Business as are listed or described on Schedule 2.1(a)(iv) (the "Intellectual Property");
(v) all rights and claims under all contracts, warranties, representations and guarantees made by suppliers, manufacturers and contractors in connection with the Seller's Assets and all rights and claims relating to Assumed Liabilities except those shown or described on Schedule 2.1(a)(v);
(vi) all licenses, permits, authorizations and approvals issued to the Seller by any Governmental Entity relating to the operation of the Business, including, including without limitation, such assets of the foregoing as are listed or described on Schedule 2.1(k2.1(a)(vii);
(lvii) all catalogssurety bonds, sales promotion literature and advertising materials relating to collateral bonds, letters of credit, cash trusts, cash deposits or the Crimson Business; providedproceeds thereof for the Financial Assurance requirements or performance bond requirements, however, that Seller should be entitled to retain copies of any such materials that also relate to the Excluded Assets whether or any businesses of Selling Companies or their Affiliates other than the Crimson Businessnot required under applicable Environmental Laws;
(mviii) all books and records of the Selling Companies and their respective Affiliates’ goodwill related to the Crimson Business;
(n) to the extent assignable, all rights under warranties, indemnities and all similar rights against third parties to the extent related to any of the Acquired Assets;
(o) all 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 Liabilities, 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. Upon 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, on 363, 365 and 1141 of the Bankruptcy Code, at the Closing Datethe Seller shall sell, Seller shallassign, transfer, convey, and shall deliver, and cause the applicable Selling Subsidiaries toSubs to sell, Transfer assign, transfer, convey and deliver to Purchaser, and the Purchaser shall purchase from Seller and the applicable Selling SubsidiariesPurchasing Subs, free and clear of all liens, claims, interests and encumbrances of any Liens other than 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), Section 1.1(b) and Section 1.1(c) are referred to as "Acquired Assets"):
(a) all of the outstanding equity interests (the "Interests") of the subsidiaries of the Seller set forth on Schedule 1.1
(a) (each a "Transferred Sub" and collectively the "Transferred Subs").
(b) all legal and beneficial right, title title, and interest of the Seller and such of each Selling Subsidiaries Sub in and to any and all of the assets, properties and rights assets of every kind and naturedescription, whether tangible or intangible, real, personal or mixed, tangible wherever situated, owned, held or intangible used by the Seller (including goodwill)or any Selling Sub) or in which the Seller (or any Selling Sub) has any right, wherever located and whether now existing title or hereafter acquired (other than the Excluded Assets)interest that is owned, which relate todirectly or indirectly, leased or are used or otherwise held primarily for use in connection withthe Business, except for the Crimson 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 (collectively, existing on the “Acquired Assets”) date hereof including, without limitation, those listed or described on Schedule 1.1(b)(i), or arising in the followingordinary course under the Customer Contracts after the date hereof (the "Accounts Receivable");
(ii) all rights and incidents of interest of the Seller and of each Selling Sub to:
(a) 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, waste management services agreements between the Seller (or one of the Selling Subs) and appurtenant rights, a customer primarily relating to the Business (the "Customer Contracts") existing on the date hereof or arising in the Joint Venture owned ordinary course after the date hereof and listed or described on Schedule 1.1 (b)(ii)(A) (which Schedule will be provided by Seller;
(h) all customer and supplier lists pertaining Purchaser prior to the Crimson Business, including those set forth on Schedule 2.1(hDue Diligence Expiration Date);
(iB) all prepaid expensesthe agreements, credits, deposits contracts and arrangements between the Seller (other than customer depositsor one of the Selling Subs) and advance payments a vendor or other third party providing goods or services primarily relating to the extent related Business listed on Schedule 1.1(b)(ii)(B) (which Schedule will be provided by the Purchaser prior to the Crimson Business, including those set forth on Schedule 2.1(iDue Diligence Expiration Date);
(jC) to the extent transferable and exclusive of those which pertain to the Excluded 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
(D) 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 Purchaser prior to the Due Diligence Expiration Date);
(iii) all equipment, computers, furniture, furnishings, fixtures, equipment (including officeoffice supplies, computer and telephone equipment), machinery, tools, dies, molds vehicles and all other tangible personal property located at any Leased Real Propertycurrently owned by, at or on order to be delivered to, the facility of any Selling Company Seller or any Affiliate of a Selling CompanySub, or at any vendor, in each case that are owned by a Selling Company and that are used or held for use primarily in the Crimson Businessoperation of the Business or are located on, includingor to be delivered to, any Owned Real Property or premises subject to the Real Property Leases (collectively, the "Tangible Personal Property"), including without limitation, such assets set forth of the foregoing as are listed or described on Schedule 2.1(j1.1(b)(iii);
(kiv) to the extent transferable, all 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 Business, including without limitation such of the foregoing as are listed or described on Schedule 1.1(b)(iv) (the "Intellectual Property"), provided that the Purchaser (or one of the Purchasing Subs) shall, to the extent it 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;
(v) all trucksrights and claims under all warranties, tractorsrepresentations and guarantees made by suppliers, trailers, railcars manufacturers and contractors in connection with the Acquired Assets and all rights and claims relating to Assumed Liabilities except those shown or other vehicles described on Schedule 1.1(b)(v);
(A) the real property used primarily in the operation of 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 owned 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 Companies and used in Sub by any Governmental Entity primarily relating to the Crimson operation of the Business, including, including without limitation, such assets of the foregoing as are listed or described on Schedule 2.1(k1.1(b)(vii);
(lviii) all catalogs, sales promotion literature the bank accounts and advertising materials lockbox arrangements primarily relating to the Crimson Business; provided, however, Business that Seller should be entitled to retain copies are listed or described on Schedule 1.1(b)(viii) (excluding all rights or incidents of any such materials that also relate interest with respect to the Excluded Assets cash or any businesses 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 Companies or their Affiliates other than Subs primarily relating to the Crimson operation of the Business;
(mxi) all of 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 Companies and their respective Affiliates’ goodwill related Subs relating to the Crimson operation of the Business;
(nxiii) all goodwill primarily related to the Business; and
(xiv) to the extent assignable, rights of indemnification from all rights under warranties, indemnities and all similar rights against non-affiliated third parties for liabilities and obligations relating to the extent related to any of Business or the Acquired Assets;.
(oc) all rights to any claimsthe company seal, suitsminute books, actions proceedings charter documents, stock or investigations at law or in equity of any nature available to or being pursued by record books and such Selling Company or its Affiliates other books and records as pertain to the extent related 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 Crimson Businesscontrary, if, at or prior to the Closing, the Acquired Assets or Seller shall have obtained a Confirma tion Order authorizing the Assumed Liabilities, whether arising by way of counterclaim or otherwise; and
(p) all insurance benefits, including rights and proceeds, arising from or relating issuance to the Crimson Business, Purchaser of 100% of the Acquired Assets or reorganized equity interests of the Assumed Liabilities.Domestic Transferred Subs listed on Schedule 1.1
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Acquired Assets. Upon On the terms and subject to the conditions of this Agreement, on the Closing DateSeller shall sell, Seller shallassign, transfer and shall cause the applicable Selling Subsidiaries to, Transfer deliver to Purchaser, and Purchaser shall purchase will purchase, acquire and accept from Seller and the applicable Selling Subsidiaries, free and clear of any Liens other than Permitted LiensSeller, all of Seller’s right, title and interest of Seller and such Selling Subsidiaries in and to the following assets, properties, rights, contracts and claims of Seller, in each case free and clear of all Encumbrances other than Permitted Encumbrances, of the assetsBusiness (collectively, properties with the Kitchen Electrics Inventory, the “Acquired Assets”):
(a) All inventories of finished goods and rights packaging materials that are located on the Leased Real Property as of every kind the Closing (collectively, “Inventory”);
(b) All equipment, furniture, furnishings, fixtures, tools and natureother tangible personal property, whether realand all communications equipment, including personal or mixedlaptop computers and cellular phones, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired (other than the Excluded Assets)in each case, which relate to, may be assigned to a Transferred Employee or that are used or held for use in connection withlocated on the Leased Real Property as of the Closing (collectively, the Crimson “Equipment”);
(c) The cash from customers of the Business located at the Leased Real Property as of the Closing and all checks from customers of the Business located at the Leased Real Property as of the Closing (with such checks endorsed by Seller to Purchaser) (collectively, the “Acquired AssetsCash”) including, without limitation, the following:
(a) all Acquired Inventory;
(b) all Acquired A/R;
(c) all Acquired Contracts);
(d) all Acquired IPAll of Seller’s right, title and interest in the “Chef’s Outlet” trade name;
(e) all All contracts, agreements, commitments, purchase orders, leases, licenses and other legally binding arrangements, whether written or oral (collectively, “Contracts”), but only to the extent such Contracts are (i) listed on Schedule 4.8 (except to the extent that a Contract or part of a Contract is identified as an Excluded Asset in Section 1.2) or (ii) entered into in the ordinary course of business and related exclusively to the Business, but excluding any Contracts between Seller and any Affiliate of Seller (such Contracts that constitute Acquired Books and RecordsAssets collectively referred to as the “Business Contracts”);
(f) all Acquired PermitsAll books and records, including business records, research material, tangible data, documents, personnel records with respect to Transferred Employees, invoices, customer lists, vendor lists, service provider lists, sales and promotional literature, catalogs and advertising material used for the marketing of the products of the Business, but only to the extent related exclusively to the Business, but excluding Tax Returns and related notes, worksheets, files and documents relating thereto (collectively, “Business Records”);
(g) all of the equity ownership interests, and appurtenant All rights, causes of actions, claims and credits to the extent related exclusively to any Acquired Asset or any Assumed Liability, including all guarantees, warranties, indemnities and similar rights in the Joint Venture owned by Sellerfavor of Seller in respect of any Acquired Asset or any Assumed Liability;
(h) all customer and supplier lists pertaining All transferable Permits that are (i) exclusively related to the Crimson operation of the Business, including those set forth on Schedule 2.1(h);
(i) all prepaid expenses, credits, deposits (other than customer deposits) The application systems and advance payments to the extent related to the Crimson Business, including those software set forth on Schedule 2.1(i1.1(i);
(j) all furniture, fixtures, equipment (including office, computer and telephone equipment), machinery, tools, dies, molds and all All other tangible personal property assets of the Business located at any the Leased Real PropertyProperty as of the Closing, at the facility of any Selling Company or any Affiliate of a Selling Company, or at any vendor, in each case that are owned by a Selling Company and that are used or held for use in the Crimson Business, including, without limitation, such except (A) those assets set forth on Schedule 2.1(j);
(k) all trucks, tractors, trailers, railcars or other vehicles that are owned by the Selling Companies owner of the Leased Real Property, (B) Excluded Assets and used (C) assets that have been disposed of in the Crimson Business, including, without limitation, such assets listed on Schedule 2.1(k);
(l) all catalogs, sales promotion literature and advertising materials relating to the Crimson Business; provided, however, that Seller should be entitled to retain copies ordinary course of any such materials that also relate to the Excluded Assets or any businesses of Selling Companies or their Affiliates other than the Crimson Business;
(m) all operation of the Selling Companies and their respective Affiliates’ goodwill related to Business since the Crimson Business;
Statement Date. After the Closing Date, Seller shall take all action (n) to the extent assignable, all rights under warranties, indemnities and all similar rights against third parties to the extent related to any of the Acquired Assets;
(o) all 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 shall cause its Affiliates to take all actions) reasonably requested by Purchaser to effect the extent related to provisions of this Section 1.1, including the Crimson Business, the prompt delivery of any Acquired Assets or the Assumed Liabilities, 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 Liabilitiesthat are inadvertently not transferred at Closing.
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Acquired Assets. Upon On the terms and subject to the conditions of set forth in this Agreement, on including approval of the Closing DateBankruptcy Court pursuant to Sections 105, Seller shall363 and 365 of the Bankruptcy Code, at the Closing, the Sellers shall sell, assign, transfer, convey, and shall cause deliver to the applicable Selling Subsidiaries to, Transfer to PurchaserPurchasers, and Purchaser the Purchasers shall purchase from Seller and the applicable Selling Subsidiariespurchase, free and clear of any Liens all Encumbrances (other than Permitted LiensEncumbrances) and accept from the Sellers, all right, title and interest of Seller and such Selling Subsidiaries the Sellers in and to all of the assetsrights, properties and rights assets of the Sellers (other than the Excluded Assets), of every kind and naturedescription, wherever located, whether real, personal or mixed, tangible or intangible (including goodwill)intangible, wherever located and whether now existing or hereafter acquired (other than the Excluded Assets)owned, which relate toleased, or are licensed, used or held for use in connection with, or relating to the Crimson Business (collectively, the “Acquired Assets”) ), including, without limitationlimitation all right, the followingtitle and interest of each Seller in, to or under:
(a) all Acquired InventoryAccounts Receivable existing on the date hereof or arising in the ordinary course of the Business after the date hereof, except to the extent that any of the foregoing are collected, paid, satisfied or discharged on or prior to the Closing;
(b) all Acquired A/Rcredits, claims for refunds, prepaid expenses, prepaid rent, and prepaid items relating to the Business, including without limitation, such of the foregoing as are listed and described on Schedule 1.1(b);
(c) all Contracts listed or described in Schedules 1.1(c)(i), (c)(ii), (c)(iii) and (c) (iv) other than those excluded pursuant to the next to last paragraph of this Section 1.1, as the same may be supplemented pursuant to the next to last paragraph of this Section 1.1 (the “Assigned Contracts”):
(i) all of the Contracts between any Seller and a customer relating to the Business (the “Customer Contracts”), including without limitation, such of the foregoing as are listed or described on Schedule 1.1(c)(i) or that relate to the Business or arise in the ordinary course of the Business after the date hereof;
(ii) the Contracts between any Seller and a vendor or other third party providing goods or services relating to the Business (the “Supplier Contracts”), including without limitation, such of the foregoing as are listed or described on Schedule 1.1(c)(ii) or that relate to the Business and arise in the ordinary course of the Business after the date hereof;
(iii) the licenses, sublicenses or other Contracts to which a Seller is a party or otherwise bound pursuant to which Sellers have granted, been granted, have given, or have obtained any right to use any Intellectual Property that is material to the Business or is otherwise related to the Acquired Contracts;Assets, including without limitation such of the foregoing as are listed or described on Schedule 1.1(c)(iii) (the “License Agreements”); and
(iv) all Material Contracts not otherwise covered by clauses (i)-(iii) above and the other Contracts and arrangements that are listed or described on Schedule 1.1(c)(iv).
(d) any rights, claims or causes of action of Sellers against third parties arising out of events occurring prior to the Closing Date, including and, for the avoidance of doubt, arising out of events occurring prior to the Petition Date and including any rights under or pursuant to any and all Acquired IPwarranties, representations and guarantees made by suppliers, manufacturers and contractors relating to products sold, or services provided, to Sellers, excluding only the rights, claims and causes of action that are identified as Excluded Assets in Section 1.2;
(e) all Acquired Books inventory, finished goods, goods in transit, works in process, samples, raw materials, packaging materials and Recordsother materials used or held for use in the operation of the Business or held by third parties, whether on consignment or not, including without limitation such of the foregoing as are listed or described on Schedule 1.1(e) (collectively, the “Inventory”);
(f) (i) the Owned Real Property used in the operation of the Business that is listed and described on Schedule 1.1(f)(i) (the “Acquired Owned Real Property”) and (ii) all Leases of Leased Real Property used in the operation of the Business that are listed and described on Schedule 1.1(f)(ii), other than such Leases that are excluded pursuant to the next to last paragraph of this Section 1.1, as the same may be supplemented pursuant to the next to last paragraph of this Section 1.1 (such Leases, the “Assumed Leases” and the Leased Real Property subject thereto, the “Acquired PermitsLeased Real Property”);
(g) all machinery, equipment, computers, furniture, furnishings, fixtures, office supplies, vehicles, tools, order entry devices and all other tangible personal property owned by the Sellers that are used in the operation of the equity ownership interestsBusiness and located on any Owned Real Property or on any Leased Real Property (collectively, and appurtenant rightsthe “Tangible Personal Property”), in including, without limitation, such of the Joint Venture owned by Sellerforegoing as are listed or described on Schedule 1.1(g);
(h) all customer Trademarks that are listed on Schedule 1.1(h), and each of the following used in connection with such Trademarks or products manufactured and sold under or that are used in connection with such Trademarks as of the Effective Date: all trade dress, logos, slogans, Domain Names, and other similar designations of source or origin, together with the goodwill symbolized by, and any registrations and applications for, the foregoing; Patents; Copyrights (other than Software); know-how, Trade Secrets, and rights in proprietary processes, formulae, Customer Lists, and supplier lists pertaining to the Crimson Businesslists; and all other Intellectual Property owned, including those set forth on Schedule 2.1(h)used or licensed by Sellers;
(i) all prepaid expenses, credits, deposits (other than customer deposits) rights in the computer software programs and advance payments to the extent related to the Crimson Business, including those set forth information technology systems listed or described on Schedule 2.1(i1.1(i) (the “Software”);
(j) all furniture, fixtures, equipment (including office, computer Permits issued to the Sellers by any Governmental Entity relating to the operation of the Business and telephone equipment), machinery, tools, dies, molds any subsidies and all other tangible personal property located at remissions provided by any Leased Real Property, at Government Entity to Sellers with respect to the facility of any Selling Company or any Affiliate of a Selling Company, or at any vendor, in each case that are owned by a Selling Company and that are used or held for use in the Crimson Business, including, without limitation, such assets set forth on Schedule 2.1(j);
(k) all trucks, tractors, trailers, railcars or other vehicles the bank accounts and lockbox arrangements relating to the Business that are owned by the Selling Companies and used in the Crimson Business, including, without limitation, such assets listed or described on Schedule 2.1(k1.1(k) (excluding all rights or incidents of interest with respect to the cash or cash equivalents in such bank accounts or lock box arrangements on or before the Closing Date);
(l) all catalogs, sales promotion literature and advertising materials Documents except those (i) specifically excluded under Section 1.2(l) or (ii) relating to the Crimson Business; provided, however, that Seller should be entitled to retain copies employees of any such materials that also relate to the Excluded Assets or any businesses of Selling Companies or their Affiliates other than the Crimson BusinessSellers who are not Hired Employees;
(m) all of the Selling Companies and their respective AffiliatesSellers’ goodwill related rights, to the Crimson Businessextent they are transferable, to make claims, and to receive the proceeds of any such claims, (i) under property or casualty insurance policies maintained by or on behalf of Sellers, or any of them, for any loss to an Acquired Asset occurring prior to Closing that is covered by such policies, and (ii) under liability insurance policies maintained by or on behalf of Sellers, or any of them, with respect to any Assumed Liability;
(n) to all goodwill associated with the extent assignable, all rights under warranties, indemnities and all similar rights against third parties to the extent related to any of Business or the Acquired Assets;
(o) all rights to any claims, suits, actions proceedings or investigations at law or telephone and telephone facsimile numbers and other directory listings used in equity of any nature available to or being pursued by such Selling Company or its Affiliates to connection with the extent related to the Crimson Business, the Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise; and;
(p) all insurance benefitsoriginal artwork, including prints, lithographs, etchings, oil paintings, watercolor drawings and other similar works of art located at any Owned Real Property or Leased Real Property;
(q) all rights and proceeds, arising from of Sellers under letters of credit or similar instruments issued by third parties naming any Seller as a beneficiary thereunder relating to the Crimson BusinessAcquired Assets; and
(r) all other or additional privileges, rights and interests associated with the Acquired Assets of every kind and description and wherever located that are used or intended for use in connection with, or that are necessary to the continued operation of, the Business as presently being operated. Notwithstanding anything herein to the contrary, at any time prior to Closing, Purchasers shall be entitled in their sole discretion to remove any Contracts or Leases from the lists of Assigned Contracts and Assumed LiabilitiesLeases by providing written notice thereof to Sellers, and any Contracts or Leases so removed shall not constitute Acquired Assets at Closing. At any time prior to Closing, Purchasers shall be entitled in their sole discretion to request the Sellers to add to the lists of Assigned Contracts and Assumed Leases any Contracts or Leases of Sellers by providing written notice thereof to Sellers, and any Contracts or Leases so added shall constitute Acquired Assets; provided that Purchasers shall not be entitled to add to the list of Assigned Contracts or Assumed Leases any Contracts or Leases of Sellers that, as of the date Purchasers provide written notice to Sellers, (i) any Sellers have rejected by order of the Bankruptcy Court, (ii) that have terminated or expired pursuant to their terms or by order of the Bankruptcy Court, or (iii) that are set forth on Schedule 1.1(A). If Purchasers add any Contracts or Leases to the Assigned Contracts or Assumed Leases in accordance with the foregoing, then, at the Purchasers’ request, and subject to Section 1.5, Sellers shall take such steps as are necessary to cause such Contracts or Leases to be assumed by the Sellers and assigned to the Purchasers, including promptly filing appropriate pleadings with the Bankruptcy Court to obtain approval of such assumption and assignment. At any time prior to three (3) Business Days prior to the date of the Auction, Purchasers may, in their sole discretion by written notice to Sellers, designate any of the Acquired Assets other than Assigned Contracts and Assumed Leases as additional Excluded Assets, which notice shall set forth in reasonable detail the Acquired Assets so designated. Purchasers acknowledge and agree that there shall be no reduction in the Purchase Price if they elect so to designate any Acquired Assets as Excluded Assets.
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